Hewitt v McKensey [2003] NSWSC 1186

Hewitt v McKensey [2003] NSWSC 1186

The plaintiff failed to establish either manifest or strong error of law on the face of the arbitral award or technical misconduct justifying setting aside the award, as the arbitrator's decisions (including interpretation of 'in connection with') were open on the facts and law, and any established technical misconduct (absence of valid s 22(2) agreement or retainer of a solicitor rather than barrister) did not cause substantive prejudice or justify setting aside the award. Relief is discretionary and, given the low value and proportional cost, not warranted.

Parties
Plaintiff: Christopher Michael Hewitt; Defendant: Hugh Stanley McKensey; Defendant: Victor John Lewis; Defendant: Peter Charles Hicks
Jurisdiction
Australia
Judgment Date
16 December 2003
Procedural Posture
Application for Leave to Appeal/arbitral Award Challenge / Supreme Court Decision After Hearing on Appeal and Application to Set Aside Partial Award
Outcome
Plaintiff's application dismissed; plaintiff to pay defendants' costs.
Legal Topics
Arbitral Error of Law, Technical Misconduct of Arbitrator, Interpretation of 'in Connection With' in Contract, Effect of Technical Misconduct Under Commercial Arbitration Act 1984, Scope of 'amiable Compositeur' Role, Leave to Appeal Arbitral Awards Under Commercial Arbitration Act 1984
Arbitration Contract Law Commercial Law Arbitral Error of Law Technical Misconduct of Arbitrator Interpretation of 'in Connection With' in Contract Effect of Technical Misconduct Under Commercial Arbitration Act 1984 Scope of 'amiable Compositeur' Role +1 more

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Parties

Christopher Michael Hewitt

Plaintiff

Hugh Stanley McKensey

Defendant

Victor John Lewis

Defendant

Peter Charles Hicks

Defendant

Procedural Posture

Application for Leave to Appeal/arbitral Award Challenge / Supreme Court Decision After Hearing on Appeal and Application to Set Aside Partial Award

Legal Issues

  1. 1 Whether there was a manifest or strong error of law on the face of the arbitral award regarding clause 12 of the Settlement Agreement
  2. 2 Whether 'no evidence' challenge to findings of fact raises a question of law under Commercial Arbitration Act 1984
  3. 3 Whether the arbitrator misconducted himself by acting as an 'amiable compositeur' without proper written authority under s 22(2)

Ratio Decidendi

The plaintiff failed to establish either manifest or strong error of law on the face of the arbitral award or technical misconduct justifying setting aside the award, as the arbitrator's decisions (including interpretation of 'in connection with') were open on the facts and law, and any established technical misconduct (absence of valid s 22(2) agreement or retainer of a solicitor rather than barrister) did not cause substantive prejudice or justify setting aside the award. Relief is discretionary and, given the low value and proportional cost, not warranted.

Court Disposition

Plaintiff's application dismissed; plaintiff to pay defendants' costs.

Orders

  • Further amended summons dismissed.
  • Plaintiff to pay defendants' costs.