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

Greig v. Pendray (1839) NSW Sel Cas (Dowling) 244; [1839] NSWSupC 70


Supreme Court of New South Wales

Dowling C.J., 24 June 1839

Source: Australian, 29 June 1839

This was an action on an award.  As the award was not drawn up in accordance with the submission, the plaintiff was nonsuited.


Dowling C.J., Willis and Stephen JJ, 21 September 1839

Source: Australian, 24 September 1839[1] 

Greig v. Penray.  --  This was an action upon an award tried last term.  The parties submitted the disputes about a certain agreement to the arbitrator, but the award recited that £75 was due to Greig for driving cattle for the defendant.  The Chief Justice held that there was nothing in the award to connect it with the submission, and directed a nonsuit.  Mr Windeyer now moved that the nonsuit be set aside, upon the ground that there was nothing upon the face of the award to shew that it was not what was intended by the rule of submission, and as the Courts are bound to presume everything in favour of an award, the Court should have upheld the award, unless it was shewn that the agreement referred to in the submission was about cattle.  The Court took time to consider the case.


Dowling C.J., Willis and Stephen JJ, 28 September 1839

Source: Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 1[2] 

An arbitrator's award will be set aside in the absence of any evidence of a connection between the award and the submission to arbitration.*

Assumpsit on the award of James Musin in favour of the Plf for the sum of £73.2.5.  Plea, the General issue.  At the trial before Sir James Dowling Knt. C.J. & two assessors o[n] the 24th June 1839 it appeared that there had been an agreement in writing between the parties, which was referred to the arbitration of James Musin.  The agreement was not produced in evidence to shew its contents.  The Plf relied merely upon proof of the submission and the award.  The submission was not made a rule of court, and was in these terms viz:-

[p. 2]"29th January 1838 - We the undersigned do hereby agree to abide by the decision of Mr James Musin Shipbuilder of Sydney in the settlement of an agreement dated 7th August 1837.

Wm Pendray

Jas Greig."

The award was in these terms viz:-

"20th March 1838.-  Having taken into consideration the matters in dispute between James Greig & William Pendray respecting the amount claimed by the latter for driving and conducting certain cattle belonging to the said William Pendray, and having heard the statement of the said parties and their witnesses, I do award that there is due and owing from Pendray to Greig the sum of £73. 2. 5. which I order to be paid forth with".

James Musin.

It was objected on the part of the Deft, that in the absence of proof of the agreement, which was [p. 3] the matter in dispute between the parties, there was nothing to connect the submission to arbitration with the award of the arbitration, shewing that he had pursued the authority given.  The submission referred to an agreement, not in evidence, and the award was silent as to the terms and object of the submission.  The judge directed a nonsuit, holding that there being no proof of connexion between the submission & the award the case failed.  The award was not "of & concerning any matters" stated in the submission.  In his opinion the award should correspond or agree in substance at least with the submission, to shew that the arbitration pursued his authority.

On a former day in this term Windeyer moved to set aside the nonsuit, contending that the court would intend that the award was made in pursuance of the submission, & that the onus lay on the Deft to shew that the award was not of and concerning any [p. 4] matter in dispute between the parties.  Until the contrary is shewn every presumption is to be made in favour of the award.- a Beckett contra admitted that if any connexion could be shewn between the submission & the award, the Court would presume everything in favour of it, but where no connection was proved, the court could presume nothing in its favour, - for non constat, that the arbitrator had any jurisdiction in the matter at all.

Dowling CJ.  I still retain the opinion which I expressed at the trial.  It is a principle not to be controverted, that the power and authority of an arbitrator is derived entirely from the submission, which gives him jurisdiction s the domestic forum instituted by the parties, constituting him the judge of the maters in dispute.  He must therefore make his award [p.5] strictly in pursuance & conformity with the submission.  The old rule to be collected from the books was, to construe an award to be bad if possible, but a more liberal & reasonable interpretation is now adopted by the Courts, in order to give effect to awards, if possible, without violating the rules adopted for construing written instruments. I agree therefore that every intendment must be made in favour of an award when one it is established, that the arbitrator had any authority in the premises.  The difficulty I have in this case is, that the award appears to be wholly unconnected with the submission, and that we can intend nothing in favour of jurisdiction over the matter supposed to be referred.  The submission here is, in "the settlement of an agreement stated to be dated 7th August 1837."  There [p.6] was no proof of what that agreement related to.  It was not in any way identified with the award, and it would be carrying the doctrine of intendment,  great way to imply the contents of a written instrument not produced.  I think this would be violating the first principle of evidence.  The award is, not "of & concerning an agreement dated 7th August 1837." but of & concerning "the amount claimed for driving & conducting certain cattle", without referring in any way whatever to an agreement.  Possibly if the agreement of the 7th August had been produced the chasm might have been filled up, so as to constitute a sufficient link of connexion between the submission & the award.  I can find no case which carries the doctrine of intendment so far as it has been pressed in agreement [p.7] on the present occasion.  In all the cases of liberal construction in favour of awards, it will be found that the award on the face of it, shews at least some authority to arbitrate on the matters in difference; but here there is a complete discontinuance of the authority contained in the submission, or rather there is no connexion with it whatever.  The submission appears to be of one thing, & the award is of another.  In Ingram v Milnes 8 East 446 the submission was of all matters in difference, and the arbitrator having awarded a sum to be paid by the Defts to the Plfs on their banking account, which was a matter in difference, was held a good award for that amount, although the arbitrators exceeded their authority, in awards upon other matters so in the case cited from 1 Com. Dis.l lit. Arbitrament E. 10. although the award was of matters in controversy until the 28 January, & the submission was [p.8] in matters in controversy till the 29th January, yet as the arbitrators had authority to arbitrate all controversies, till that time, the Court would intend that there were no matters in controversy after the 28th January.  If it it [sic] had sufficiently appeared from the award in the present case that the arbitrator had decided concerning any matter referred to him, I should have made every intendment in favour of the award, but here it is not shewn that he had decided anything within the compass of the submission.

Willis J.  Same opinion

Stephen J. Same opinion

Rule Discharged.



[1] See also Sydney Herald, 23 September 1839.

[2] See also Sydney Gazette, 1 October 1839; Sydney Herald, 30 September 1839, both stating that the court ordered a new trial, upon the plaintiff undertaking to pay costs.

Published by the Division of Law, Macquarie University