REGANAM PTY LTD v CROSSING [2007] NSWSC 582

New South Wales Supreme Court

CITATION : REGANAM PTY LTD v CROSSING [2007] NSWSC 582 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 25-26 July 2006

JUDGMENT DATE : 8 June 2007

JUDGMENT OF : Hulme J at 1

DECISION : See paragraph 73

Reganam Pty Limited PARTIES : Phillip BM Crossing Barbara Helen Jones

FILE NUMBER(S) : SC 31884/05

COUNSEL : Plaintiff: JM White Defendant: M Seymour

Plaintiff: Ormonde Roger Butler SOLICITORS : 1st Defendant: The Law Company 2nd Defendant: IV Knight

LOWER COURT JURISDICTION :

LOWER COURT FILE NUMBER(S) : N/A

LOWER COURT JUDICIAL OFFICER : Barbara Helen Jones

LOWER COURT DATE OF DECISION : 27 July 2005

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Friday, 8 June 2007 31884/05

REGANAM PTY LIMITED v Phillip Barclay Murray CROSSING & ANOR 1 HIS HONOUR: The Plaintiff in these proceedings seeks, inter alia, to have set aside what it asserts was an award made in an arbitration pursuant to the Agricultural Tenancies Act and the removal of the arbitrator. An arbitration provided for under that Act attracts most of the provisions of the Commercial Arbitration Act, including restraints on any appeal - using that term in a broad sense - to this Court. 2 The Plaintiff was the landlord of an agricultural holding which, pursuant to written agreement had been leased to the Defendant from 1 February 1999 to 31 January 2000, and then by annual renewals to 31 January 2004. The Plaintiff claimed that the Defendant was under a contractual obligation to control weed growth and to repair or replace cattle yard gates and rails on the property and that the defendant did not do so, whereupon the Plaintiff, by itself or by a contractor Mr Swift, went on to the property and attended to that weed growth and the repair of the gates and rails. The Plaintiff sought to recover from the Defendant the costs of so doing. In its original claim, of 5 July 2004, the Plaintiff sought to recover amounts totalling $4,690.95 paid between 24 November 2003 and March 2004 and interest thereon. By an amendment to its claim made on 14 January 2005, the Plaintiff sought a further sum of $3,370 by way of an estimated future cost of eradicating or controlling another weed, Chilean Needle Grass, and replacing pasture that would be incidentally damaged in those efforts. 3 In an affidavit of 4 March 2005, the Plaintiff sought to make a further claim in the sum of $1,750 for removing and destroying another weed, Cestrum. 4 In September 2004, the Defendant made his own claim. Originally that claim was in terms which, so far as is relevant, were as follows:- "$50,000 for harassment, being unable to manage a cattle fattening enterprise at Glenholme because of Mr Simon Kelleher's interference which includes spraying pastures, turning a first class season into a drought due to burn off from chemicals sprayed by the contractor Mr Kelleher hired. For harassment and persecution of the Plaintiff when trying to move stock and belongings from Glenholme at the end of the lease. Cutting fences, immobilising fences, including boundary fences, endangering me, my property and the public, especially motorists using O'Brien's Lane." 5 During the course of the arbitration hearing that followed on 5 and 6 May 2005, Mr Crossing sought to expand this claim but the details of what occurred in this regard can be left for the moment. 6 The case which the Plaintiff seeks to make here is that there was an award in one or both of a letter from the arbitrator dated 27 July 2005 to the parties and in what is referred to in that letter as "my judgment in the abovementioned matter". That document occupies some 11 pages and concludes with four paragraphs under the heading "Orders". The first three of those "orders" really amount to directions concerning the provision of further evidence in the matter, although the fourth paragraph is in terms: "The applicant is to pay to the respondent by way of damages the sum of $15,000 for the respondent's claim for nuisance." 7 The letter repeats these and contains other directions which it is unnecessary to repeat. 8 The bases of the Plaintiff's challenge are: firstly, a denial of natural justice, including a claim that the arbitrator permitted the Defendant to rely on documents and evidence of which the Plaintiff had no notice and refused the Plaintiff time and any adjournment to deal with that evidence; secondly, that the "judgment" of the arbitrator contains manifest errors of law; and thirdly, that pursuant to s44(c) of the Commercial Arbitration Act, the arbitrator should be removed as unsuitable to deal with the dispute. 9 When I embarked upon the hearing on 12 July last, both counsel and I saw some virtue in firstly addressing the question of whether the plaintiff should be granted leave under section 38(4)(b) of the Commercial Arbitration Act and whether the Plaintiff's claim based on a denial of natural justice required leave. In a judgment delivered that day I concluded that no leave was required for an application to set aside an arbitrator's award upon the ground of a denial of natural justice. I was also satisfied that leave was not required under sections 42 and 44 of the Commercial Arbitration Act before this Court could intervene under those sections. 10 I further concluded that there was manifest error in a number of respects in the arbitrator's "judgment". At least one of those errors led to the order that I have quoted requiring that the Plaintiff pay the Defendant $15,000.