BRIAN DLUGASH v. ED MAYERS

BRIAN DLUGASH v. ED MAYERS

Construing the Deed of Submission, Letter of Determination and Agreement as a composite instrument, Mr Dickson had jurisdiction to make interim determinations including partial payments and to make reasonable adjustments to net asset values; his determinations were binding and would only be disturbed for material departure from instructions or conduct so egregiously unfair as to render them invalid; his failure to receive information after repeated requests and clause permitting ex parte proceedings justified his assumptions; he was not disqualified for bias by later assistance to the Plaintiff; he had implied power to correct obvious errors and thus the amended final determination was...

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
HCA9424/1993
Procedural Posture
Contract Dispute Enforcement of Expert Determination (consolidated Actions) / Judgment at Trial
Outcome
Judgment for Plaintiff; Defendant's counterclaim dismissed; determinations enforced
Legal Topics
Expert Determination, Jurisdiction to Make Interim Payments, Interpretation of Composite Agreement, Natural Justice / Fairness of Expert, Bias / Partiality, Power to Correct Clerical Errors, Set Off, Interest and Costs
Source Language
EN
Contract Law Civil Procedure Arbitration / Expert Determination Equitable Set Off Tax Law Expert Determination Jurisdiction to Make Interim Payments Interpretation of Composite Agreement +5 more

Case Brief

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Parties

Brian Dlugash

Plaintiff

Ed Mayers

Defendant

Procedural Posture

Contract Dispute Enforcement of Expert Determination (consolidated Actions) / Judgment at Trial

Legal Issues

  1. 1 Whether the expert (Mr Dickson) had jurisdiction to make interim determinations and direct partial payments
  2. 2 Whether Mr Dickson had jurisdiction to adjust audited accounts or whether adjustments were exclusively for auditors
  3. 3 Whether an expert must observe rules of natural justice and whether Mr Dickson acted unfairly or unreasonably

Ratio Decidendi

Construing the Deed of Submission, Letter of Determination and Agreement as a composite instrument, Mr Dickson had jurisdiction to make interim determinations including partial payments and to make reasonable adjustments to net asset values; his determinations were binding and would only be disturbed for material departure from instructions or conduct so egregiously unfair as to render them invalid; his failure to receive information after repeated requests and clause permitting ex parte proceedings justified his assumptions; he was not disqualified for bias by later assistance to the Plaintiff; he had implied power to correct obvious errors and thus the amended final determination was...

Court Disposition

Judgment for Plaintiff; Defendant's counterclaim dismissed; determinations enforced

Orders

  • Defendant to pay Plaintiff US$487,976
  • Interest: 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