BRIAN DLUGASH v. ED MAYERS

BRIAN DLUGASH v. ED MAYERS

The court held that Mr Dickson was validly appointed as an expert with jurisdiction under the composite Deed/Letter/Agreement to make interim and final determinations including specified adjustments; his interim determinations were lawful; challenges failed because defendant did not prove material departure from...

Source-derived case information.

Citation
BRIAN DLUGASH v. ED MAYERS
Parties
Plaintiff: Brian Dlugash; Defendant: Ed Mayers
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 May 1997
Case Number
HCA8423/1994
Procedural Posture
Civil Contract Dispute Enforcing Expert Determination / High Court Judgment (decision on Merits)
Outcome
Judgment for Plaintiff: award of US$487,976 plus interest; Defendant's counterclaim dismissed; costs - order nisi in Plaintiff's favour.
Legal Topics
Enforcement of Expert Determination, Jurisdiction of Expert, Procedural Fairness and Natural Justice, Bias/partiality, Set Off, Correction of Clerical Errors, Interest on Judgment
Source Language
en
Contract Law Arbitration and Expert Determination Civil Procedure Company/accounts Law Enforcement of Expert Determination Jurisdiction of Expert Procedural Fairness and Natural Justice Bias/partiality +3 more

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Summary, issues, holding and outcome

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Parties

Brian Dlugash

Plaintiff

Ed Mayers

Defendant

Procedural Posture

Civil Contract Dispute Enforcing Expert Determination / High Court Judgment (decision on Merits)

Legal Issues

  1. 1 Whether the expert (Mr Dickson) had jurisdiction to make interim determinations and adjustments to net asset values
  2. 2 Whether adjustments to audited accounts could only be made by auditors or by the expert under the composite agreement
  3. 3 Whether an expert must observe the full rules of natural justice or merely act fairly and not egregiously

Ratio Decidendi

The court held that Mr Dickson was validly appointed as an expert with jurisdiction under the composite Deed/Letter/Agreement to make interim and final determinations including specified adjustments; his interim determinations were lawful; challenges failed because defendant did not prove material departure from instructions, egregious unfairness, fundamental flaw or disqualifying bias; the expert had implied power to correct clerical errors; accordingly plaintiff entitled to US$487,976 plus interest and defendant's counterclaim dismissed.

Court Disposition

Judgment for Plaintiff: award of US$487,976 plus interest; Defendant's counterclaim dismissed; costs - order nisi in Plaintiff's favour.

Orders

  • Defendant to pay Plaintiff US$487,976 (sum determined in amended final determination)
  • Simple interest pursuant to s.48 Supreme Court Ordinance (Cap.48): on US$311,022 at 9.5% per annum for period 23 July 1993 to 16 April 1994