FRIEND AND BROOKER PTY LTD v COUNCIL OF THE SHIRE OF EUROBODALLA [1993] NSWCA 103

FRIEND AND BROOKER PTY LTD v COUNCIL OF THE SHIRE OF EUROBODALLA [1993] NSWCA 103

The arbitrator failed to make the factual findings necessary in law to support his conclusion regarding damages, specifically as to whether the Narooma contract was a cause (wholly or partly) of the actual loss of profits. Because of this failure, there was a manifest error of law under the Commercial Arbitration Act 1984, and the matter had to be remitted for proper findings as to causation and quantum.

Parties
Appellant/cross Respondent: Friend and Brooker Pty Ltd; Respondent/cross Appellant: Council of the Shire of Eurobodalla
Jurisdiction
Australia
Judgment Date
24 November 1993
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal and Cross Appeal From Award of Arbitrator, Following Refusal of Leave by Cole J in Supreme Court
Outcome
Appeal and cross-appeal allowed, orders of Cole J set aside regarding leave to appeal, leave to appeal granted to both parties, matter remitted to arbitrator for reconsideration, costs orders as specified.
Legal Topics
Causation in Contract Damages, Multiple Causes of Loss, Error of Law by Arbitrator, Commercial Arbitration Appeals
Arbitration Contract Law Damages Causation in Contract Damages Multiple Causes of Loss Error of Law by Arbitrator Commercial Arbitration Appeals

Case Brief

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Parties

Friend and Brooker Pty Ltd

Appellant/cross Respondent

Council of the Shire of Eurobodalla

Respondent/cross Appellant

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal and Cross Appeal From Award of Arbitrator, Following Refusal of Leave by Cole J in Supreme Court

Legal Issues

  1. 1 Whether, in awarding damages where loss resulted from two concurrent causes of equal efficacy, the arbitrator erred in awarding only half the loss instead of all damages flowing from both causes as per established legal principle
  2. 2 Whether the arbitrator's findings of fact were sufficient and necessary to support legal conclusions for damages claims 50, 51, 52 and 54

Ratio Decidendi

The arbitrator failed to make the factual findings necessary in law to support his conclusion regarding damages, specifically as to whether the Narooma contract was a cause (wholly or partly) of the actual loss of profits. Because of this failure, there was a manifest error of law under the Commercial Arbitration Act 1984, and the matter had to be remitted for proper findings as to causation and quantum.

Court Disposition

Appeal and cross-appeal allowed, orders of Cole J set aside regarding leave to appeal, leave to appeal granted to both parties, matter remitted to arbitrator for reconsideration, costs orders as specified.

Orders

  • Allow the appeal and cross-appeal and set aside so much of the orders of Cole J which refuse leave to appeal to both parties from the Award of the Arbitrator in respect of claims 50, 51, 52 and 54.
  • Grant leave to both parties to appeal from the Arbitrator's award in respect of those claims.