JUDGMENTBY: MACINTYRE J

This is an appeal against the decision of a judge of the High Court at Kuala Lumpur in Originating Summons No. 39 of 1965 on reference of a special case stated under an arbitration award. The matter in dispute was whether a sum of $ 31,592.44 claimed by the appellant from the respondents as being the cost of materials supplied and work done in connection with a building contract was an amount expended over and above the agreed contract price of$ 470,000.

The appellant claims that although the extra work done and materials supplied were indicated in the electrical layout drawings supplied by the respondents, they were not shown in the specification on the basis of which he had tendered for the contract. He further claims that after the contract was concluded he had sought clarification of the discrepancy and was informed by one Mr. Hewish in a letter written on behalf of Mr. Callow, the superintending officer under the contract, that the extras in question were outside the scope of the contract and that he would be paid accordingly.

The respondents, on the other hand, contend that the appellant was aware when he tendered for the contract that the drawings and specification were integral parts of the contract; and that he had agreed to supply the necessary materials and execute the work required under the contract for the aforesaid price of $ 470,000. They further contended that they were not bound by any promise made by Mr. Hewish who was not their servant or agent, and deny that he was authorised by Mr. Callow to write the letter in question.

At the suggestion of counsel for the appellant, the arbitrator agreed to submit to the court in the form of a case stated two questions of law, namely, (1) whether the letter written by Mr. Hewish, a member of a firm of consulting architects engaged by the respondents in connection with the contract, was binding on the respondents; and (2) whether under clause 40 of the conditions of the contract, the arbitrator was entitled to go behind the letter and consider whether the decision of Mr. Hewish was justified or not by the evidence.

The arbitrator, however, instead of first referring the case stated for determination by the court and then delivering his award on the basis of the courts ruling, made his award in the alternative form. The first alternative was in the form of a case stated whereunder if the court decided the first question of law in the affirmative and the second in the negative, the appellant was entitled to be paid the sum of $ 31,592.44 claimed on the basis of materials supplied and work done over and above the contract price and for consequential relief. The second alternative was also in the form of a case stated whereunder if the court decided the first question in the negative or the first and second questions in the affirmative, then the appellant was to be responsible for the completion of the work under the electrical layout drawings within the agreed contract price and was to pay the costs of the arbitration and the arbitrators fee and charges. The third alternative was in the form of a final and conclusive award deciding the dispute in favour of the respondents and directing the appellant to pay the costs of the arbitration and the arbitrators fee and charges with a proviso that the award was to take effect at the expiry of six weeks from the date of the publication of the award if in the meantime the special case stated under the first two alternatives was not set down for hearing before the court or within such extended time as the court may allow or upon withdrawal of the application after it had been set down for hearing.

The award was published on the 26th of November, 1964. Neither party applied to court to set down the special case stated for hearing within the six weeks or for extension of time. Under its own terms the award in the final and conclusive form came into effect on the 8th of January 1965. In the result, the right of

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