VANDERVAERE v MILAN [1992] NSWCA 260

VANDERVAERE v MILAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER JJA and SAMUELS AJA 11 May 1992, 11 September 1992 [1992] NSWCA 260

Building contract — arbitration — appeal from arbitrators decision — s38(5) Commercial Arbitration Act 1984 — failure of arbitrator to award interest on outstanding progress payments — whether an error in law — interest not claimed in pleadings. Held: no error on the face of the award — power to award interest adjectival — no specific procedure to be followed by arbitrator in applying the power — determination of the matter would not be likely to add substantially to the certainty of commercial law — extremely difficult to find an error of law in the approach of the arbitrator unless there was clear evidence of the detail of proceedings before the arbitrator.

Clarke JA The respondent is a builder who on 2 March 1987 entered into an agreement with the appellants whereby he undertook to construct additions to their residence at 31 Cook Road, Lindfield, for the sum of $32,500. The agreement was in writing and provided for progress payments. During the course of construction disputes arose between the parties, the detail of which is presently unimportant, and on 10 November 1987 the respondent ceased work on the site leaving parts of the work uncompleted. The disputes were in due course referred to D B Maxwell, Esq sitting as a sole arbitrator.

It is apparent from the award that the respondent made a number of claims, including a claim for an outstanding progress payment, but did not advert to interest payable in respect of his claims. It is also apparent from the award that the appellants counter-claimed and although there were a great number of separate items included within the counter-claim there was no mention of interest in that document either.