Harlin Properties (Pty) Ltd v Rush & Tomkins (SA) (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1963 (1) SA 187 (D)

Harlin Properties (Pty) Ltd v Rush & Tomkins (SA) (Pty) Ltd
1963 (1) SA 187 (D)

1963 (1) SA p187

Citation	1963 (1) SA 187 (D)
Court	Durban and Coast Local Division
Judge	Henning J
Heard	August 10, 20, 1962; August 21, 1962
Judgment	October 23, 1962

Flynote : Sleutelwoorde G

Arbitration — Award — Invalidity of — Award of costs — Duty of arbitrator H — Remittal — When ordered under sec 17 (a) of Act 24 of 1898 (N).

Headnote : Kopnota

An award is invalid if an arbitrator fails to decide each and every one of the several matters referred to him.

An arbitrator must exercise his discretion judicially in awarding costs.

In determining whether there should be a remittal to an arbitrator in terms of section 17 (a) of Act 24 of 1898 (N) the Court must exercise its discretion judicially. Whether there should be a remittal or not depends upon the circumstances of each case.

1963 (1) SA p188

Case Information

Application under sec. 27 of Act 24 of 1898 (N) for an order making the award of an arbitrator an order of Court. The facts appear from the reasons for judgment.

D. J. Shaw, Q. C. (with him C. H. Hills), for the applicant.

J. J. Friedman, Q.C. (with him A v Hoskings), for the respondent. A

Cur adv vult.

Postea (October 23rd).

Judgment

B Henning, J.:

This is an application in terms of sec. 27 of Act 24 of 1898 (N) for an order making the award of an arbitrator a judgment of the Court. Respondent opposes the application and asks for an order setting the award aside.

C Respondent, a building contractor, and applicant entered into a contract on the 6th June, 1955, in terms of which respondent undertook to erect buildings for applicant in Durban. The contract provided for the settlement of certain disputes by arbitration. In due course disputes arose between the parties as a result of which they entered into a deed of submission to arbitration in July and August, 1959. The preamble and the relevant terms of the deed of submission read:

D 'Made and entered into by and between Rush and Tompkins (South Africa) (Proprietary) Limited of Durban (hereinafter referred to as the contractor) of the one part, and Harlin Properties (Proprietary) Limited, of Durban (hereinafter referred to as the employer) of the other part.

And whereas by a written contract dated the 6th day of June, 1955, the contractor agreed to build for the employer, a building comprising apartments and a restaurant, in Durban upon the terms and conditions therein set out.

E And whereas certain differences and disputes have arisen between the parties.

And whereas in terms of clause 26 of the conditions of contract the said differences and disputes are referable to arbitration and the parties have decided to submit these differences and disputes for the decision of a single arbitrator, in terms of the Arbitration Act, 24 of 1898 (N) and have agreed upon an arbitrator.

Now therefore these presents witness:

1. The parties agree to submit all disputes and differences to H. R. F Rorvik of 1217 Salisbury House, West Street. Durban, quantity surveyor, as arbitrator, for his decision and award which shall be final and binding upon the parties.

2. The said differences and disputes are comprised in the following questions, namely -

(a)

Is the contractor entitled to receive, in terms of the contract, a final certificate from the architects under the said contract for the completion of the said building?

(b)

If the answer to (a) is in the affirmative, then for what amount?

(c)

G Is there any liability on the contractor to make good defects, if any, in the building?

(d)

If the answer to (c) is in the affirmative, then precisely what defects, and the value of such work?

(e)

Has the contract between the parties been validly terminated?

(f) (i)

Is the contractor liable to the employer in damages; and

(ii)

Is the employer entitled to an indemnity from the contractor in respect of any claims made by the lessee on the employer H arising out of the work?

(g)

If the answer to (f) (i) is in the affirmative, then in what amount?

(h)

Is any amount of money owing by the employer to the contractor

(a)

under the contract; or

(b)

by way of quantum meruit?

(i)

If the answer to (h) is in the affirmative, then in what amount?

This clause may be amended or added to by agreement between the parties at any time prior to the decision and award of the arbitrator.

3. The contentions in writing of the contractor shall be submitted to the arbitrator and served on the employer within one month of the completion of this agreement by signature, and the contentions of the employer in writing

1963 (1) SA p189

Henning J

shall be submitted to the arbitrator within one month after the service on the employer of the contractor's contentions and the contractor shall have the right, if need be, to submit to the arbitrator and serve on the employer within fifteen days of the service of the employer's contentions, a written reply to the employer's contentions.

4. The arbitrator shall have the powers conferred on him by the said Act, and the Schedule thereto shall not apply save for the following A paragraphs, namely (d), (g), (i), (m), (n), (o), (p), (q), which shall be read, mutatis mutandis, as if incorporated herein.

5. All evidence shall be taken on oath or affirmation to be administered by the arbitrator in terms of the Act.

6. The award shall settle all differences between the parties arising out of, or in connection with, the aforesaid agreement.'

B The parties submitted their contentions in writing in terms of clause 3 of the deed, but early in the year 1961 it became apparent that the person named in clause 1 was unable to act as arbitrator, and in consequence thereof the parties agreed to the appointment of Courtice Jocelyn Leigh-Hunt as arbitrator in his place. The premises were inspected by the arbitrator and he heard evidence on a number of days in C April and and June, 1961. At a hearing which took place on the 29th June, 1961, it was agreed between the parties that in lieu of making a finding and award in respect of the items contained in the claims and counter claims submitted in terms of the deed of submission, the arbitrator should make a re-measurement of the works and should decide certain specified matters. The terms of the agreement of the 29th June were recorded and are as follows:

D 'Conditions for re-measurement:

(1) It is agreed that the arbitrator shall make a complete re-measurement of the works, save for the sub-contracts of Tile Beam Floors (Pty.) Ltd., and Matthew Hall, and shall decide:

(a)

To what extent, if any, the charges claimed in annexures B and C are justified but the arbitrator is not confined to the items included therein?

(b)

E To what extent, if any, the defects set forth in annexure F exist, provided the time factor shall be taken into account?

(c)

The liability for and what amount, if any, is due by reason of the existence of any defects, whether by reason of the cost of rectifying the same or of diminution in value or both or otherwise?

(d)

What amount has been paid including any direct payments properly made to sub-contractors?

(e)

What relief is due by the one party to the other?

F (2) In re-measuring, the arbitrator may, but is not bound to, consult with Mr. Fred Bense, Mr. Walsh, Mr. Jones, Mr. Phillips and such other persons, including Mr. Hardman, as he may deem fit and may call for any books, documents or records or other information from either party.

(3) The parties agree that the arbitrator may hear any person referred to in para. 2 in the absence of the parties and shall not be bound to afford any person an opportunity to be heard, save as to any question of fact on which evidence has been led on behalf of the contractor.

G (4) All figures compiled by Mr. Jones and in Rush & Tompkins (S.A.) (Pty.) Ltd.'s possession to be handed to the arbitrator.

(5) The cost of re-measurement shall be costs in the arbitration.

(6) The costs of the arbitration shall be decided after such argument as the parties may wish to present when the decisions under paragraph 1 have been reached.

(7) The award shall be a final settlement between the parties of all H claims and disputes between them arising out of or in connection with the building of Los Angeles Hotel, save for the question of the indemnity which the employer reserves the right to claim after the decision of the pending action between the employer and the lessee.

(8) It is agreed that the time for the making of the award shall be extended to three months from this date.'

Annexure B, referred to in the conditions for re-measurement, is a statement prepared by the quantity surveyor setting forth the contract price, items omitted, extras, the value of work done (presumably since

1963 (1) SA p190

Henning J

the last payment to respondent) and payments made by applicant, and concluding with a recommendation for payment of the balance of £5,780 A 15s. 5d. reflected in the statement as being due to respondent. Annexure C is a detailed statement of further items in respect of which respondent claimed payment of various sums totalling £517. 4s. 8d. Annexure 'F' is a statement prepared by applicant in which a large number of alleged defects in the works are set forth, as well as the manner and cost of rectification, the total cost being given as £14,593 11s.

B On the 16th March, 1962, the arbitrator notified the parties of his interim findings pursuant to clause 1 of the conditions of re-measurement. The findings were recorded by the arbitrator as follows:

'The following figures have been prepared in terms of the conditions of remeasurement agreed upon between the parties during the hearing on Thursday, the twenty-ninth day of June, 1961.

My...