CJ AND R LIESCHKE v BR TURNER [1992] NSWCA 135

CJ AND R LIESCHKE v BR TURNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY JA and Hope AJA 9 March 1992, 9 March 1992

[1992] NSWCA 135

ARBITRATION — BUILDING DISPUTE — ARBITRATOR'S AWARD — DATE OF "PRACTICAL COMPLETION" — MEANING OF — CLAIM FOR LOSS AGAINST BUILDER — FINDING BY ARBITRATOR ON FACTS — HELD: LEAVE TO APPEAL REFUSED.

ARBITRATION — commercial arbitration — appeal to Supreme Court — appeals limited to leave in cases of manifest error of law on face of the award — building dispute between proprietors and builder — whether builder liable for water damage — whether builder liable after determined date of practical completion — date thereof — Giles J refuses to grant leave — proprietors apply by summons for leave to appeal to Court of Appeal — held (dismissing summons): The case was not one suitable for leave. Observations by Kirby P on the "purpose of Parliament that leave should not be granted except in the comparatively rare circumstances of a manifest error of law".

Commercial Arbitration Act, 1984 s38(5). ORDERS Summons dismissed with costs.

Kirby P By s38(5) of the Commercial Arbitration Act, 1984 Parliament has provided for cases to which this summons for leave to appeal applies. The subsection provides, relevantly: s38(5) The Supreme Court shall not grant leave under the subsection unless it considers:

(b) there is

(i) a manifest error of law on the face of the award"

Giles J, before whom the summons for leave to appeal first came from the arbitrator, concluded, for reasons stated by him on 14 February 1992, that there was no such error of law. Two such errors were alleged by the claimants who were the proprietors in the subject building dispute before the arbitrator. The summons before us is an application for leave to appeal from his Honour's decision, wherein he decided that the summons before him should be dismissed with costs. The claimants have reargued in this Court the contentions which they unsuccessfully urged upon Giles J.