Plucis v Fryer [1967] HCA 38

Plucis v Fryer [1967] HCA 38

Clause 26, properly construed, was designed to prevent litigation of disputes within the contract once they had arisen and to substitute arbitration as the means of resolving them. The Full Court was plainly right to hold that the clause operated to inhibit the commencement or maintenance of an action upon such a dispute without depending on the giving of notice. Any doubt about whether the Full Court correctly found that a relevant dispute existed did not warrant special leave, particularly because the parties were remitted to their rights before the action.

Jurisdiction
Australia
Procedural Posture
Application for Special Leave to Appeal / High Court of Australia Special Leave Application
Outcome
Special leave to appeal refused with costs.
Legal Topics
['building Contract' 'progress Certificate' 'arbitration Clause' 'stay or Inhibition of Proceedings' 'special Leave to Appeal']
['contract Law' 'arbitration' 'building and Construction' 'civil Procedure'] ['building Contract' 'progress Certificate' 'arbitration Clause' 'stay or Inhibition of Proceedings' 'special Leave to Appeal']

Case Brief

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Procedural Posture

Application for Special Leave to Appeal / High Court of Australia Special Leave Application

Legal Issues

  1. 1 ["Whether, before or during the action, there was a dispute or difference within cl. 26 of the building contract about the applicant's entitlement to payment under the progress certificate." 'Whether cl. 26 prevented the commencement or maintenance of an action on a dispute falling within the clause until arbitration had occurred and an award had been made.' 'Whether the Full Court erred in refusing to allow the applicant to sue on the progress certificate notwithstanding the arbitration clause.']

Ratio Decidendi

Clause 26, properly construed, was designed to prevent litigation of disputes within the contract once they had arisen and to substitute arbitration as the means of resolving them. The Full Court was plainly right to hold that the clause operated to inhibit the commencement or maintenance of an action upon such a dispute without depending on the giving of notice. Any doubt about whether the Full Court correctly found that a relevant dispute existed did not warrant special leave, particularly because the parties were remitted to their rights before the action.

Court Disposition

Special leave to appeal refused with costs.

Orders

  • ['Special leave to appeal refused with costs.']