Walker and Another v Mosdel and Another (2009/53147) [2012] ZAGPJHC 171 (29 August 2012)

Walker and Another v Mosdel and Another (2009/53147) [2012] ZAGPJHC 171 (29 August 2012)

The court held that the arbitrator failed to expressly determine the appellants' counterclaims for rectification and statement and debatement of account. This omission rendered the award incomplete and not final, as required by law. The court found that it is inappropriate to infer the dismissal of counterclaims from the award or the evidence, especially where no reasons are provided. The failure to deal with all issues submitted for arbitration constitutes a gross irregularity in the conduct of the proceedings under s 33(1)(b) of the Arbitration Act. The court further held that a review is concerned with the validity of the decision-making process, not the merits of the dispute....

Citation
[2012] ZAGPJHC 171
Parties
Appellant: Roland Guy Walker; Appellant: Pietro Luigi Guiseppe Corrara; Respondent: Clifford Mosdel; Respondent: Reward Ventures 01 CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 August 2012
Case Number
2009/53147
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Review Application Under S 33 of the Arbitration Act
Outcome
Appeal upheld; arbitration award set aside; costs awarded against second respondent.
Judges
F Kathree-Setiloane, DSS Moshidi, TM Makgoka
Legal Topics
Arbitration Review, Gross Irregularity, Finality of Award, Rectification of Contract, Statement and Debatement, Costs Order
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Review Gross Irregularity Finality of Award Rectification of Contract Statement and Debatement +1 more

Case Brief

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Parties

Roland Guy Walker

Appellant

Pietro Luigi Guiseppe Corrara

Appellant

Clifford Mosdel

Respondent

Reward Ventures 01 CC

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Review Application Under S 33 of the Arbitration Act

Legal Issues

  1. 1 Did the arbitrator make a finding in respect of the appellants' counterclaims?
  2. 2 Was the arbitration award final and certain?
  3. 3 Did the arbitrator commit a gross irregularity in failing to determine the counterclaims as contemplated in s 33(1)(b) of the Arbitration Act?

Ratio Decidendi

The court held that the arbitrator failed to expressly determine the appellants' counterclaims for rectification and statement and debatement of account. This omission rendered the award incomplete and not final, as required by law. The court found that it is inappropriate to infer the dismissal of counterclaims from the award or the evidence, especially where no reasons are provided. The failure to deal with all issues submitted for arbitration constitutes a gross irregularity in the conduct of the proceedings under s 33(1)(b) of the Arbitration Act. The court further held that a review is concerned with the validity of the decision-making process, not the merits of the dispute....

Court Disposition

Appeal upheld; arbitration award set aside; costs awarded against second respondent.

Orders

  • The appeal is upheld.
  • The judgment of the court a quo is set aside and substituted with an order upholding the application for review and setting aside of the arbitration award.