One of the conditions of a road-making contract between the plaintiff and the defendant provided that any dispute relating to any alleged breach of contract by the defendant should from time to time be referred to and be decided by the award of the defendant’s engineer. Alleging that by reason of breaches of the contract committed by the defendant by its engineer the defendant had repudiated the contract, which repudiation the plaintiff had elected to accept as a rescission of the contract, the plaintiff brought an action for damages or for work and labour done. The defendant applied under sec. 5 of the Arbitration Act 1928 for a stay of the proceedings. It was admitted by the plaintiff that the breaches of contract alleged were amongst the matters agreed to be referred. Deeming himself bound by authority, Mann J. refused a stay. The defendant appealed.