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Decisions of the Superior Courts of New South Wales, 1788-1899

Lyons v Unwin [1833] NSWSupC 42

arbitration

Supreme Court of New South Wales

In banco, 27 March 1833

Source: Sydney Herald, 1 April 1833

WEDNESDAY. - Abraham Lyons v. Unwin, one, &c. - In this case a rule nisi had been obtained, calling upon Mr. Unwin to show cause why he should not deliver up to the plaintiff a bond of arbitration, and award upon it between the plaintiff and Samuel Lyons, and placed in his hands by the arbitrator.

Mr. Wentworth now opposed the rule being made absolute in this case.  In consequence of some disputes arising between Abraham and Samuel Lyons, the case by consent was referred to arbitration, the bonds were drawn and signed by both, and handed to Mr. Plomer, who was appointed arbitrator, and who awarded to be due Abraham Lyons 94l. 12s.  On the day the award was made, Mr. Plomer and Mr. Samuel Lyons went in a gig on the Parramatta-road; while stopping at the Plough Inn to bait, Messrs. Saul and Abraham Lyons drove up, and commenced abusing them; not wishing to commit a breach of the peace, they drove on to the Cheshire Cheese, the other parties again drove up, and after another wordy warfare respecting the justice of the award, all parties consented that the award should be cancelled, and that they should have their remedy by law, in consequence Mr. Plomer delivered up to Mr. Unwin the bond, award, and all documents relating to this affair.  Since then A. Lyons (continued the Learned Gentleman) had found out, that instead of the trial being likely to terminate in his favour, it would be 150l. against him,, and therefore wished the award now to stand.  It was somewhat strange that the party should come before this Court to obtain possession of those bonds which had been cancelled by his consent; besides Mr. Unwin had a lien on these very bonds for the costs of preparing them.  This motion could not be sustained against Mr. Unwin, as he held the bonds merely as the attorney of Plomer, against whom an action of trover or detenue might be brought, but could not be sustained in the present form.

Mr. Foster replied.  If the award had been cancelled, or an agreement had been entered into, to render the bonds null and void, then this motion could not have been made, or an action have been sustained in trover; an angry conversation which was said to have taken place amounted to nothing; they were bound to abide by the award, and that could only be dissolved by an instrument equally as binding.  It was clearly the property of Abraham Lyons, he being the obligee of the bond, and if Mr. Unwin had had any lien on the bond, he had lost it by delivering it up.  Supposing he had a lien on it, did he detain it on that ground?  (He (Mr. F.) held in his hand an affidavit of Mr. Chambers', who swore that Mr. Unwin had told him that he would deliver up the bond and money awarded, if he, Abraham Lyons, would plead to a declaration filed against him by Samuel Lyons.  It was therefore clear, that Mr. U. Detained it for the furtherance of his client's interest, Mr. S. Lyons, and therefore he fixed himself with the wrongful keeping of it.

The Court directed Mr. Unwin to make an affidavit, showing what lien he had upon the papers, or they should order them to be delivered up.

 

Forbes C.J., Dowling and Burton JJ, 1 June 1833

Source: Sydney Herald, 6 June 1833[1 ]

 

Abraham Lyons v. Unwin. - In this case a motion was made last Term, calling upon the defendant show cause why an arbitration bond, and the award upon it, should not be delivered up to the plaintiff, when the Court granted a rule Nisi.  Mr. Unwin had now put in an affidavit, stating that he had a lien upon them for their preparation and costs.  The Court directed that the costs be taxed by the Master, and when paid by plaintiff, then the documents to be delivered up.

 

Notes

[1 ] See also Sydney Gazette, 4 June 1833.  For comments on the inaccuracy of the Sydney Gazette report, see Australian, 7 June 1833.

Published by the Division of Law, Macquarie University