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

Macnise v. Hayes [1842] NSWSupC 23

partnership, dissolution of - arbitration

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 5 February 1842

Source: Sydney Herald, 7 February 1842 [1]

This was an argument on a demurrer to the plaintiff's declaration. Mr. Broadhurst appeared to maintain the demurrer, and Mr. Fisher in support of the declaration.

             The declaration stated, that before the differences thereinafter mentioned, the plaintiff and defendant were partners, and disputes arising between them, they, by certain articles, agreed to refer the matter to arbitration, the arbitrators to make their award within four months, with power to dissolve the partnership; and, therefore, by a further agreement, the parties submitted all the matters in difference to two persons named Dalgarno and M'Dermott, who directed that certain cows, musquets, and poultry, should be delivered by the defendant to the plaintiff, and certain, other articles, on the other hand, to be delivered up by the plaintiff to the defendant. The declaration then averred that the plaintiff had performed some of the things by him to be performed and fulfilled, and was in readiness to perform the remainder; but that the defendant had neglected and refused to perform his part.

          To this declaration, the defendant demurred, on the grounds that it did not set forth under which of the articles of agreement the arbitrators had made their award; as under one of the articles of agreement, the matters of authority delegated to the arbitrators were set forth, and under the other agreement they were not set forth. The defendant, therefore, could not tell but that the award was made under the set of articles which afforded no authority for that purpose. Further it appeared, that no notice had been given to the defendant at the time of the making of the award, which was required by the terms of the submission, in order to enable the defendant to perform those acts required of him, within the time limited by the award. Another ground of demurrer was, that the arbitrators had awarded costs, when they had no authority given to them for that purpose. This objection appearing on the face of the declaration, Mr. Baron Park has held to be fatal on demurrer, for he said it was not at all unlikely that the party against, whom the costs had been given, might mainly, from the consideration of those costs, have been induced to consent to the reference. On these different grounds Mr. BROADHURST submitted that the defendant must have judgment on the demurrer.

            Mr. FISHER, in support of the declaration, said, that the short answer to the defendant's charge of ambiguity was, that there was provision set forth for the settlement, by the arbitrators, of all differences that had arisen, or might arise, between the parties; and that as the arbitrators could only make their award under one of the agreements, it was impossible that the defendant could have been perplexed by omission in the award of all mention of the agreement under which the award was made. As to the objection respecting the costs, - Watson, on Awards, laid it down that that ground only vitiated the particular part of the award in which costs were given; - and as the demurrer was to the whole declaration, the demurrer, being too large, could not be supported.

            Mr. BROADHURST replied, and

Their HONORS gave judgment : they said their was no doubt that the declaration was bad in several points. The second objection obviously went to the whole declaration, and although it was merely a special pleading objection, still, on the principles of pleading, it must prevail. It certainly was ambiguous on the face of the declaration under which of the agreements the arbitrator had given his award. The defendant, therefore, must have judgment on his demurrer; the plaintiff to have leave to amend, on payment of costs.  

[1] See also Australian, 8 February 1842.

Published by the Division of Law, Macquarie University