PETER PAPAPETROS v CARMELLO MAZZA [1989] NSWCA 160

PETER PAPAPETROS v CARMELLO MAZZA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA, and ROGERS AJA 31 July 1989

[1989] NSWCA 160

Priestley and Meagher JJA and Rogers AJA The Court is not inclined to grant leaveto appeal on this summons. The application involved essentially two points, although in the statement filed pursuant to Pt51 r3(7), the questions involved were stated more numerously than two.

The course of the argument made it quite clear that the first of the two questions in regard to which the application for leave was made, was that which was submitted arose from par2.1 of the arbitrators' award. It was said that an issue posed by the arbitrators in that paragraph was never dealt with by them.

It seems sufficient in dealing with this first argument to say that the Court takes a different view. The paragraphs following 2.1 in the Court's opinion all show that the issue raised by the arbitrators was dealt with, and in a way that shows quite clearly the arbitrators' reasons. After considering the evidence, they came to a view on the facts which supported the builder's case in regard to what was agreed at the end of July 1987 concerning the claims that the pro- prietor had to that date in regard to the builder's delays to that date.

The other point, which it became clear was substantially the only other point raised in the application for leave, was one concerning the legal question whether there had been consideration given to support the variation of the original contract. Brownie J had considered this argument and had come to the conclusion that on the materials before him, first, the argument which was being put to him had not been put to the arbitrators, and second, that had it been, the course of evidence before the arbitrators may well have been different. For that reason he was of the view that it was not open for the matter to be canvassed on appeal.