EDWARD MAYERS v. BRIAN DLUGASH

EDWARD MAYERS v. BRIAN DLUGASH

On construction of the Deed and Agreement there was no sufficiently formulated dispute remitted for judicial determination; the powers conferred (broad investigatory and valuation functions, power to restructure and impose new contractual obligations, timetable tied to valuation) and the identity of the appointee (accountant) indicate expert/valuer appointment; therefore Dickson was an expert not an arbitrator and the Arbitration Ordinance did not apply.

Citation
EDWARD MAYERS v. BRIAN DLUGASH
Parties
Plaintiff: Edward Mayers; Defendant: Brian Dlugash
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 June 1994
Case Number
HCMP342/1994
Procedural Posture
Arbitration Removal of Arbitrator (arbitration Ordinance S.25(1)) / Preliminary Issue Hearing (originating Summons)
Outcome
Preliminary issue decided in favour of Defendant: Charles Dickson was appointed as an expert/valuer not an arbitrator; originating summons to remove arbitrator dismissed.
Legal Topics
Expert Determination Vs Arbitration, Formulated Dispute Requirement, Removal of Arbitrator, Arbitrator Immunity, Construction of Deed of Submission, Valuation and Share Transfer
Source Language
EN
Arbitration Contract Civil Procedure Commercial Law Company Law Expert Determination Vs Arbitration Formulated Dispute Requirement Removal of Arbitrator +3 more

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Parties

Edward Mayers

Plaintiff

Brian Dlugash

Defendant

Procedural Posture

Arbitration Removal of Arbitrator (arbitration Ordinance S.25(1)) / Preliminary Issue Hearing (originating Summons)

Legal Issues

  1. 1 Whether Charles Dickson was appointed as an arbitrator or as an expert/valuer
  2. 2 Whether the Arbitration Ordinance applied and thus whether removal under s.25(1) was available
  3. 3 Whether a formulated dispute existed at the time of the reference

Ratio Decidendi

On construction of the Deed and Agreement there was no sufficiently formulated dispute remitted for judicial determination; the powers conferred (broad investigatory and valuation functions, power to restructure and impose new contractual obligations, timetable tied to valuation) and the identity of the appointee (accountant) indicate expert/valuer appointment; therefore Dickson was an expert not an arbitrator and the Arbitration Ordinance did not apply.

Court Disposition

Preliminary issue decided in favour of Defendant: Charles Dickson was appointed as an expert/valuer not an arbitrator; originating summons to remove arbitrator dismissed.

Orders

  • Originating Summons seeking removal of Mr. Charles Dickson as arbitrator dismissed
  • Costs order nisi in favour of Defendant