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. On the materials which were before this Court when the argument began, there appeared to the Court to be no basis for disputing Brownie J's conclusion. Upon that becoming apparent the Court was asked to receive in evidence written submissions which had been put before the arbitrators. It was said that these would show that, what I will call for short, the "no consideration issue" had been raised before the arbitrators. There was a problem involved in the Court looking at this material because, on the basis of various standing decisions of the court, unless the written submissions had been referred to or incorporated in some way in the award of the arbitrators, it was not open for them to be taken into consideration in questions on an appeal. The Court took the course of admitting the submissions without ruling upon the question of the propriety in light of the law as it presently stands of their being used for the purpose of seeing whether a question of law arose on the face of the award. As it happened, the Court was of the view after an inspection of the submissions, that they in no way supported the submission made by the applicant for leave. I think it should be recorded that the fact that the Court did look at these 2 UNREPORTED JUDGMENTS submissions was not a result of any decision by the Court that it was proper to do so in light of the provisions of the statute. It perhaps should also be recorded that Brownie J gave leave to appeal on certain points to the builder and on certain points to the proprietor. However, it does not appear that the particular grounds advanced today in support of a more general granting of leave to appeal are connected with any of the points in regard to which leave to appeal was granted at first instance in such a way as to make it desirable or expedient to grant leave to appeal in regard to the points raised today. The Court is of the view that the application for leave today must be dismissed with costs.