Vogelaar v Callaghan

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 30 April 1996
• Neutral Citation: 1996 WJSC-HC 4783
• Docket Number: No. 411 Sp./1995,[1995 No. 411 Sp.]
• Court: High Court
• Date: 30 April 1996

1996 WJSC-HC 4783

THE HIGH COURT

No. 411 Sp./1995

VOGELAAR v. CALLAGHAN

IN THE MATTER OF THE ARBITRATION ACTS 1954 AND 1980 AND

IN THE MATTER OF AN ARBITRATION

BETWEEN

STOFFEL VOGELAAR AND ANNE VOGELAAR

PLAINTIFFS

AND

DANNY CALLAGHAN

DEFENDANT

Citations:

ARCHIPELAGOS, THE 1979 2 LLOYDS 289

ARBITRATION ACT 1954 S31

ARBITRATION ACT 1954 S38

KEENAN V SHIELD INSURANCE 1988 IR 89

RSC O.56 r4

ARBITRATION ACTS 1954 – 1980

Synopsis:

ARBITRATION

Award

Error - Disclosure - Reference - Costs - Payment - Conflicting claims under building contract - Building owner offered payment of sum in settlement of dispute - Offer made and rejected before reference to arbitration - Sum offered being in excess of damages awarded to contractor - Arbitrator awarded costs of reference to contractor - Arbitrator unaware of rule that costs follow the event - Application to set aside award - Proceedings remitted to arbitrator to reconsider costs issue - Extension of period al lowed for making application - Rules of the Superior Courts, 1986 (S.I. No. 15), order 56, r. 4 - Arbitration Act, 1954 (No. 26), s. 38 - (1995/411 Sp - Barron J. - 30/4/96) - [1996] 1 I.R. 88

|Vogelaar v. Callaghan|

PRACTICE

Time limit

Extension - Arbitration - Award - Annulment - Six weeks allowed for application to set aside award - - Period to run from date on which award made - Award not taken up until after expiration of permitted period - Extension of period granted - (1995/411 Sp - Barron J. - 30/4/96) - [1996] 1 I.R. 88 - [1996] 2 ILRM 226

|Vogelaar v. Callaghan|

1 Judgment of Mr. Justice Barron delivered the 30th day of April 1996.

2 In this case the Plaintiffs seek to set aside an arbitration award made on the 27th March, 1995. The circumstances giving rise to the award were as follows. On the 2nd March, 1991 the Defendant quoted for the construction of a dwelling house for the Plaintiffs. The price quoted was £55,300 exclusive of VAT which was indicated as being at the rate of 12 1/2%. The quotation was accepted, but at the Defendant's request, it was agreed that VAT at such rate would be payable only on the sum of £27,000 provided that the balance was paid in cash. A subsequent agreement was reached on the 10th April, 1991 in relation to renovation works of a cottage for a total sum of £6,600.

3 The work carried out was more extensive than anticipated and a considerable claim arose for extras. By the beginning of the year 1992, the Plaintiffs had paid the sum of £97,000 and the Defendant was still seeking the further sum of £62,379.20 - calculated on the basis that only £92,000 had been paid. The Plaintiffs refused to pay any further sum and in April 1992 they made an offer of £20,000 to discharge any further liability to the Defendant. This offer was rejected and was subsequently withdrawn.

4 The parties being unable to settle their differences decided to arbitrate. They appointed an Arbitrator who issued directions. In the event the arbitration proceeded by way of full pleadings and lasted over a period of four months. During this period it was at hearing on eighteen days commencing on the 6th September, 1994 and finishing on the 28th January, 1995.

5 The Defendant's claim was for a total sum of £108,837.67 under several headings. The Plaintiffs" counterclaim for the sum of £32,981.20 under several headings. In the course of the hearing they were allowed to amend this counterclaim to claim a total sum of £119,334.90. The Arbitrator made his award on the 27th March, 1995. By the award he directed that the Plaintiffs pay to the Defendant the sum of £13,270.10 inclusive of VAT in full and final settlement of all claims and counterclaims, such payment to be made within ten days of the date of his award. The award further ordered the Plaintiffs to pay the Defendant's costs of the arbitration including the costs for the preliminary hearing and the amended counterclaim on a party and party basis, such costs to be taxed in default of agreement. The award further directed the payment by the Plaintiffs of the Arbitrator's costs which he measured at £29,237.82 inclusive of VAT. The award also included one other item which is immaterial to the present proceedings. Having received notice of the making of the award both parties sent a moiety of the Arbitrator's costs to the Arbitrator and received on the 22nd May, 1995 copies of the award. On the 3rd July, 1995 the Plaintiffs sought from the Arbitrator reasons for his award which he refused to give. Such refusal being contained in a letter dated the 13th July, 1995. The proceedings to set aside the award were commenced on 3rd July, 1995.

6 The Defendant submits that the application is out of time. By Order 56 Rule 4 of the Rules of the Superior Courts 1986 an application to set aside an Arbitrator's award must be made within six weeks after the award has been made and published to the parties, or within such further time as shall be allowed by the court. The authorities show that the period of six weeks runs not from the time when the parties received copies of the award or become aware of its contents but from the date when it is actually made. In the present case that date was...