MARIO & SONS PTY LTD v INDUSTRIAL HARDCHROME PTY LTD [2000] NSWSC 740

New South Wales Supreme Court

CITATION : MARIO & SONS PTY LTD v INDUSTRIAL HARDCHROME PTY LTD [2000] NSWSC 740 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11755/99 HEARING DATE(S) : 22 May 2000 JUDGMENT DATE : 22 July 2000

PARTIES : Mario & Sons Pty Limited v Industrial Hardchrome Pty Limited JUDGMENT OF : Adams J at 1

COUNSEL : Mr B Slowgrove ( Plaintiff) Mr Wilson (Defendant) SOLICITORS : John J Puleo & Co (Plaintiff) Peter J Grant (Defendant) LEGISLATION CITED : Commercial Arbitration Act 1984 DECISION : Leave granted under s 33 of the Commercial Arbitration Act 1984 to the plaintiff to enforce the order made by the Arbitrator in the sum of $19,865.78. Liberty to apply on three days' notice. No order as to costs.

Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J MONDAY 22 MAY 2000 11755/99

MARIO & SONS PTY LIMITED v INDUSTRIAL HARDCHROME PTY LIMITED JUDGMENT 1 HIS HONOUR: This is an application for an enforcement of an award made under an arbitration agreement pursuant to s 33(i) of the Commercial Arbitration Act 1984. 2 By way of opposing unqualified leave as to the total sum awarded by the arbitrator, the respondent proprietor argued that in one respect the arbitrator had erred in law and leave to enforce his award to that extent ought not to be granted. 3 As is usual in building cases, a large number of payments in respect of varied work were in dispute between the parties. Amongst the documents tendered in the case was an architect's certificate which required the payment to the proprietor of $19,891.36. There was no evidence which justified the conclusion that the certificate was mistaken although it was argued before the arbitrator that the amount to which the certificate referred was in fact not due by the contractor to the owner. 4 I interpolate here that it was submitted for the contractor that the form of the certificate itself implied that the contractor was otherwise owing $19,891.36. Although I do not have to determine this matter for the purpose of this judgment, I am sceptical about the correctness of that argument although on one level it may be said that any offset necessarily implies a prior debt. 5 The arbitrator heard that the architect by a mistake certified sums due to the contractor in a certificate naming the proprietor. This issue was not before him in any sense which permitted this conclusion. There was no evidence upon which his conclusion in this regard was justified. This is sufficient to constitute an error of law. 6 I am also of the view, however, that to treat the certificate as a questionable document without notice to the builder who relied on it, was in the circumstances, a denial of natural justice. Accordingly for this reason also I consider the arbitrator to have erred in law. 7 It is therefore inappropriate that leave should be granted to enforce so much of the award as comprises $19,891.36. Accordingly I give leave under s 33 of the Commercial Arbitration Act 1984 to Mario and Sons Pty Limited to enforce the order made by the arbitrator in this matter in the sum of $19,865.78. 8 I will not calculate interest. If the parties are unable to agree on interest I give liberty to apply on three days' notice. 9 I give counsel leave to file an order in accordance with my reasons and if it can be agreed, that can be filed. If counsel cannot agree on the form of the order, the matter may be mentioned before me later this week and I will determine the terms of the order. There will be no order as to costs. ***********