CHAMBERS V CSR BUILDING HC HAM CIV 2005-419-001519

CHAMBERS V CSR BUILDING HC HAM CIV 2005-419-001519 17 February 2006IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2005-419-001519UNDER the Arbitration Act 1996 IN THE MATTER OF an Arbitration Award dated 15 August 2005 BETWEEN GERALD CHAMBERS, JOCELYN CHAMBERS AND LIONEL LAMB Plaintiffs AND CSR BUILDING PRODUCTS (NZ) LIMITED Defendant Hearing: 17 February 2006 Appearances: KG Parker for Plaintiffs W Butterworth and EM Tobeck for Defendant Judgment: 17 February 2006JUDGMENT OF COOPER JSolicitors: Tompkins Wake, PO Box 258, Hamilton McMahon Butterworth, PO Box 106-073, Auckland Copy: EM Tobeck, 16B Brouder Place, Manurewa, Auckland[1] This is an application for leave to appeal made under clause 5(1)(c) of the Second Schedule of the Arbitration Act 1996. The notice of application followed the form required by rule 891 of the High Court Rules and form 109. That requires questions of law arising out of the award to be specified together with the plaintiff's contention as to how the questions should be answered. [2] Having heard initially from Mr Parker I raised an issue about the clarity with which the notice had been expressed and he has proffered amendments which would add to clauses (c) and (f) (in the part of the document setting out the plaintiffs' contentions as to how the questions should be answered). He proposes that the following words be added at the beginning of paragraph (c):The decision made in the interim award dated 24 July 2003 regarding the overhang into the gutter is final and irrevocable.[3] The amendment would also add at the commencement of paragraph (f) in the same part of the document the following words:The decision made in the interim award dated 24 July 2003 regarding the adaptation or replacement of accessories is final and irrevocable.[4] Mr Butterworth, for the defendant opposed the notice being amended in that way, however, he was not able to point to any particular prejudice and I decided that the notice should properly be amended as suggested, as it would add greater clarity to the questions of law which the plaintiffs intend to pursue. [5] I record also that at the outset I heard brief argument from the parties concerning the defendant's desire to place before the Court by way of affidavit a report which has been part of the material considered by the arbitrator. Ms Tobeck pointed out that the report had in fact been presented at the arbitration and had been referred to in the affidavit initially filed on behalf of the defendant with its notice of opposition.[6] Mr Parker opposed the affidavit being read. Once again I have decided that the affidavit should be read in the absence of any real prejudice being able to be demonstrated on or behalf of the plaintiffs. [7] Having heard the parties I have decided that this is a case in which leave should be granted to appeal in accordance with the notice amended as I have earlier set out. I think, having regard to the nature of the issues which are sought to be pursued on appeal, this is not a case where in granting leave it would be appropriate to give reasons. [8] In that respect I note that r893(1) of the High Court Rules provides:If the Court grants leave it must not give reasons unless in the opinion of the Court, the circumstances require it to do so.[9] I am not aware of any circumstances which might suggest that it would be appropriate to give reasons in the present case. Indeed, the argument presented by the plaintiffs is such that I think it would be inappropriate to do so having regard to the possibility of straying into areas more appropriately left for decision on the substantive appeal. [10] It is perhaps appropriate, however, if I simply add that notwithstanding that this has been an apparently drawn out dispute so that the normal considerations of desirability of finality attendant upon litigation, but pre-eminently arbitrations, mean that leave should not be given lightly, I have no doubt that the sums involved are significant for the plaintiffs and that the matter cannot be dismissed as one which is either too trifling or too immersed in factual issues as to make it inappropriate for an appeeal to proceed. [11] Leave is granted accordingly to appeal in accordance with the plaintiffs' application, amended as I have said and set out above. [12] I direct that the matter be mentioned in a call-over in this Court at 9.00 a.m. on Wednesday 22 March 2006 so that any procedural directions that may be appropriate to ready the matter for trial can then be made and a fixture allocated for the hearing of the appeal.[13] Costs in respect of the application are reserved.