Seymour v Divome Properties P/L [2002] NSWSC 68

New South Wales Supreme Court

CITATION : Seymour v Divome Properties P/L [2002] NSWSC 68 revised - 20/02/2002 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4761/00 HEARING DATE(S) : 30/03/01, 29/05/01, 17/12/01, 08/02/02 JUDGMENT DATE : 8 February 2002

PARTIES : LESLIE SEYMOUR (Plaintiff) DIVOME PROPERTIES PTY LTD (ACN 003 801 394) (Defendant) JUDGMENT OF : Santow J

COUNSEL : P Collins (Solicitor) (Plaintiff) R Harper/ W La Hood (Solicitor) (Defendant) SOLICITORS : Peter A Collins & Associates (Plaintiff) Toltz La Hood (Defendant) CATCHWORDS : CONTRACT - Arbitration re noise dispute concerning home unit common property - submission to arbitration governed by contract - also on facts implied agreement to submit to arbitration - s25 of Commercial Arbitration Act not applicable in circumstances. LEGISLATION CITED : Commercial Arbitration Act 1984 (NSW) s25 CASES CITED : Rebenta Pty Ltd v The Ocean View Apartments Pty Ltd (1997) 14 BCL 232 DECISION : Plaintiff entitled to have dispute determined by arbitrator.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SANTOW J

No. 4761/00 LESLIE SEYMOUR Plaintiff DIVOME PROPERTIES PTY LTD (ACN 003 801 394) Defendant JUDGMENT - ex tempore (revised 20 February 2002) 8 February 2002 INTRODUCTION 1 The Plaintiff contends that in the events that have happened, there is an arbitrator seized with jurisdiction to determine a dispute between Plaintiff and Defendant relating to noise within the Plaintiff's bedroom. That noise emanates from a common wall which forms part of the common property of a home unit dwelling with a strata title scheme. The Plaintiff bases that contention upon there being a referral to arbitration pursuant to the contract of sale of the relevant property or otherwise by reason of a subsequent agreement, express or implied, or by reason of estoppel precluding the denial of such an agreement. 2 The Defendant is the property developer vendor which sold to the purchaser Plaintiff the relevant home unit. It denies that the arbitrator is so seized with jurisdiction on any of the bases relied upon by the Plaintiff. It further relies upon s25 of the Commercial Arbitration Act 1984 (NSW) as rendering such agreement "a nullity". AGREED FACTS 3 What follows are agreed facts save where indicated in para 20A(5). " AGREED FACTS