[1961] VR 721
RESERVOIR HOTEL PTY LTD v E S CLEMENTSON (VICTORIA) PTY LTD
SUPREME COURT OF VICTORIA
ADAM, J
15, 16, 17 and, 23 May 1961
[1961] VR 721
Arbitration — Building contract — Arbitration clause — Scott v Avery form — Dispute to be submitted to arbitration — Meaning of "dispute" — Judgment in
default of defence — Setting aside judgment — Right to stay of action pending
submission of dispute to arbitration as ground for setting aside judgment — Arbitration Act 1958 (No. 6200), s5
.
Some months after commencement of construction of a hotel pursuant to a
building contract, the builder C gave notice to the owner R that C was
determining the contract because R had failed to produce evidence of title as
required by the contract, CL3 of which provided that "prior to the
commencement of the works [R] shall produce to [C] evidence of his title to
the land whereon the works are to be executed" and that "should [R] fail to
produce evidence of his title... within three months after the execution of
the contract [C] may determine his employment...". Thereafter R issued a
special endorsed writ claiming as against C that C had wrongfully repudiated
the contract, and , as against P (a guarantor of C for the due performance of
C's contract with R) upon such guarantee. R entered judgment against C in
default of defence and applied for final judgment against P. Both defendants
applied to have judgment against C set aside and the summons for final
judgment stayed pending a submission to arbitration pursuant to an arbitration
clause in the contract in the Scott v Avery form of the question whether C had
wrongfully repudiated the contract.
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[1961] VR 721
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