Harold Simpson Associates (Architects) Ltd v Michael Carter Partnership

• Jurisdiction: Jamaica
• Judge: RATTRAY, P. , BINGHAM. J.A.: , PANTON, J.A. (Ag.):
• Judgment Date: 30 July 1999
• Neutral Citation: JM 1999 CA 48
• Judgment citation (vLex): [1999] 7 JJC 3001
• Court: Court of Appeal (Jamaica)
• Date: 30 July 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE RATTRAY, P THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE PANTON, J.A. (AG.)

BETWEEN

HAROLD SIMPSON ASSOCIATES (ARCHITECTS) LIMITED

APPELLANT

AND

MICHAEL CARTER PARTNERSHIP

RESPONDENT

Hilary Phillips, Q.C. and Carol Davis instructed by Davis Bennett & Beecher Brovo for Appellant

Dennis Morrison, Q.C. instructed by Ripton McPherson & Co for Respondent

ARBITRATION - Award - Leave to appeal - Whether appellant entitled to increased payment

RATTRAY, P

1 This appeal arises out of an Arbitration Award made by Mr. Maurice Stoppi to whom the parties entrusted the determination of a dispute by a joint letter dated December 5, 1997.

2 The history of the matter is as follows: Consequent on an agreement made between the parties on the 7th November, 1994 the parties agreed to be joint venture partners in providing "working drawings, designs, supervisory and consultancy services" for a project designated as the Montego Bay Civic Centre in respect of which the appellant had been engaged by the Urban Development Corporation (hereinafter referred to as ("UDC"). Both parties are architectural firms. The partnership was carried on under the name of the "Simpson/Carter Joint Venture".

3 The agreement established inter alia:

• "I. A partnership period of three years with such extension as may be required to complete the project;

• II. that the capital and profits of the partnership shall belong equally to the partners and that they shall bear all losses in the same proportions;

• III. that the partnership may be determined by either party giving to the other not less than three months notice expiring on the 1st of July or 2nd of January of any year;

• IV. that any dispute between the parties under the agreement not resolved by conciliation "or touching or concerning the interpretation of any provision of this agreement shall be referred to one or two arbitrators to be nominated by both parties, in the case of one arbitrator by consensus and in the case of two arbitrators, one by each party and the decision of that arbitrator or panel shall be conclusive of the issue so referred to him or them."

4 A dispute having arisen the parties agreed to the appointment of Mr. Maurice Stoppi "to determine the issue(s) in the current dispute between us."

5 The claim by Harold Simpson and Associates (hereinafter referred to as "HSA") as set out in an amended Statement of Claim dated the 28th of July, 1998 amounted to $6,733,642.74 with interest at Commercial Bank rates and costs. As summarised the claim was as follows:

• 1. Short payment on fees $2,581,424.55

• 2. Architectural cost for work done between 1973 and 1974 $2,800,000.00

• 3. Due on new tender price $604,719.19

• 4. Lump sum for post contract architectural fees (as per agreement dated September 11, 1996) $747,500.00.

  The total was $6,733,642.74

• 5. Interest at commercial bank rates

• 6. Cost in and of the Arbitration.

6 A defence was filed which essentially denied the claim but admitted "that the claimant is entitled to be repaid any increase found by the Arbitrator to be due to him as profit on account of the increase of tender price but says that the amount so found will form part of the overall account" and also admits that "the complainant is entitled to G.C.T. on any fees found to be due to him".

7 A defence was filed and a counterclaim in respect of the following items:

Civic Centre operational expenses	$5,383,080.00
Civic Centre profits (75% share)	1,419,304.39
Theatre operational expenses	349,440.00
Theatre profits (80% share)	69,888.00
Reimbursable expenses	30,335.00

8 making a total counterclaim of $7,252,047.39 of which $5,571,806.97 was admitted to have been received and which therefore left a balance of $1,680,240.42. This attracted a defence to the counterclaim by the claimant and a reply by the respondent.

9 By letter dated September 17, 1998 after the commencement of the arbitration proceedings, the parties agreed that the Arbitrator should include in his reference a lump sum to be paid to the claimant consequent on the claimant's withdrawal from the Joint Venture. The parties had been unable to agree between themselves what this lump sum should be.

10 The award made on the 23rd day of September, 1998 was as follows:

"AWARD

Now I, Maurice Stoppi, the Arbitrator appointed as aforesaid, having considered the representations of the parties, their witnesses and documents submitted by them in evidence do hereby award and direct that the joint venture in the first instance and then the respondent do forthwith pay to the claimant, the total sum of Three Million, Seven Hundred and Forty-one Thousand, Three Hundred and Seventeen Dollars and

Sixty-Five cents (J$3,741,317.65) in full and final settlement of items shown in claimant's Summary of Claim of July 28, 1998 and all other issues in this reference as...