VAROO PTY LTD v MULTIPLEX CONSTRUCTION PTY LTD [1991] NSWCA 274

VAROO PTY LTD v MULTIPLEX CONSTRUCTION PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY CLARKE JJA 18 and 22 February 1991, 22 February 1991

[1991] NSWCA 274

KEY WORDS: Appeal — arbitration — leave to appeal — construction of agreement — question not ripe APPEAL — leave to appeal — Court of Appeal — grounds for allowing or declining — building arbitration case — held: (1) The Court will not normally give leave to appeal to correct the reasons of the judge appealed from but to correct the decision; (2) The Court in the present case would decline leave as the issues were not concrete but largely hypothetical.

ARBITRATION — building arbitration — cost plus contract variation clause — need for "substantial variation" to the "scope of the works" — arbitrator makes interim award Cole J grants leave to appeal — confirms award — application for leave to appeal to the Court of Appeal — held: (declining leave and dismissing summons) (1) The Court will not normally give leave to appeal to review the reasons of the judge appealed from but to correct the decision challenged; (2) In the present case, the decision of Cole J, affirming the interim award of the Arbitrator, was not shown to be incorrect; (3) Appellate review, if any, should be postponed until the Arbitrator had determined the application of the variation clause to concrete claims.

Kirby P (expressing the reasons and orders of the Court): The Court declines leave to appeal from the order of Cole J dismissing an appeal which was, in turn, brought, by his Honour's leave, from an interim award of Mr G L Lumsdaine, Arbitrator.

The Court will not usually grant leave to appeal to correct the reasons of a judge leading to his or her decision. Leave to appeal is usually given to permit the Court, on appeal, to correct the decision appealed from.