A special case, concerning an award made by an arbitrator whose services were solicited following a dispute arising out of a building contract, was brought before Judge A. G. Mossop for final decision in HM. Supreme Court on Thursday morning.
Mr. John MeNelll appeared for one of the parties, Mr. Hans Fittkay, an architect. "Mrs. Christina Moores, the other party in the dispute was pres tent in court with Mr. A. R. Moores, her son, who spoke on her behalf. The dispute was over a clause in 3 building contract, in which the archi-teet agreed, on February 10, 1093, to complete new cowsheds for the Ivy Dairy by May 10, 1939, and residential quarters by August 15, 1993. The buildings were not completed. until January, 1994.
Meantime the second party in the dispute, Mrs. Moores, -had made 3 sales agreement with' a third party on November 9, 1932, by which she agreed to give vacant possession by February 23,1933. A" clause ws added that if she did not do so, she was liable to pay Tls. 900 for each month afler February 23. Mr. Moores, on behalf of his mother, explained in court yesterday that the arty with whom the sales agreement had been made had been very "The building contract contains a stnize which reads es follows "Should the Architect fail" to" substantially complete the work in" accordance with Specification inthe time cone racied, he agrees to pay to the Own
day for every day expiring a gf, te" num of Shanghai 8 Bet until the work is completed. This tim to" be considered. a Iiquidated trid ascertained. damages!
"Srme whole point for my decision whether on the. prover" construct tion of that clause, Tls. 5 per day should be regarded s liquidated dam ages, as therein. expressed, oF who ther if should be Tegarded a8 a pene ty: in Which later case Mrs. Moores fight be successful in. obtaining iresier sum than Tis Sa day" damages.
"Now T have had the law put before me by counsel for Mr. Pitta and, without (going into it in dotal, "am of the opinion that on the an: thority of the cases of the Dunlop Pneumaiie Tyre Ca, Ltd. v. New Garage and. Motor Coy Ltd (1515 Appeal Cases, p." 79), and. Widnes Foundry -v. Cellulose' Acetate Sit Coy Lid. (i031, 2 KB. 9. 399), only construction can. be. groperly fiven to this clause, namely hat the damages are liquidated and must be
pressed, of Tls. 5 a day. lmao the amount, herein "Te hasbeen suggested on behalf of Mrz. Moores that the clause should be constructed in such way make the liquidated: damages depend Upon the Tength of the delay. In ther words it is contended that for short period Ts. sa day Is rea For a longer period unreal can only say that 1 know of no authority which entitles me to, direct that the clause must be construed as liquidated damages for a period of time and as a penalty after that time. The clause must be construed as at the date of the contract.
"In the result therefore I must hold that damages are limited to the sum of Tls. 5 a day and that the arbitra-for's award must be read as though that figure were credited to Mrs. Moores and as ifthe balance di from Mrs. Moores to Mr. Fittkau was $1,825.85"
His Lordship said that he would make no order as to costs, in reply to an application by Mr. John' Neill. His Lordship pointed out th arbitrator had stated a special case. Tt had not been stated at the. instigation of either of the disputant parties and therefore he did not fect he should make an order.
Text read from the printed page and cleaned; old type leaves the occasional error.