Arbitration clause and substitute arbitrator relief upheld where notice was served and the contractual arbitrator could not act.

A wide arbitration clause covered disputes about withheld certification and sums allegedly due for work done, and the petition sufficiently stated the matters in difference for reference. The contractual requirement of prior written notice was treated as satisfied where the petition itself contained the dispute notice and was served before the reference order. Where the named arbitrator declined or was unable to act, the Court construed the statutory scheme liberally and held that it could direct filing of the agreement and appoint a substitute arbitrator to give effect to the arbitration agreement, while preserving the finality of the architect's decisions on matters excluded from arbitration.

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Issues: (i) Whether the dispute as framed in the petition was covered by the arbitration agreement and whether the petition sufficiently stated the matters in difference; (ii) whether the contractual requirement of prior written notice of dispute had been complied with; (iii) whether the Court could direct reference and appoint an arbitrator when the named contractual arbitrator declined or was unable to act.

Issue (i): Whether the dispute as framed in the petition was covered by the arbitration agreement and whether the petition sufficiently stated the matters in difference.

Analysis: The arbitration clause was wide enough to cover disputes arising under the contract, including whether the architect had wrongfully withheld a certificate and whether any amount remained due for work done. The petition identified the claim and the matters in difference with sufficient clarity for purposes of filing the agreement and directing reference.

Conclusion: The issue was decided in favour of the appellant.

Issue (ii): Whether the contractual requirement of prior written notice of dispute had been complied with.

Analysis: Although the earlier correspondence did not exactly mirror the dispute as finally set out in the petition, the petition itself contained the notice of dispute and was served before the order of reference. The contractual condition requiring notice was therefore treated as satisfied for the purposes of the application.

Conclusion: The issue was decided in favour of the appellant.

Issue (iii): Whether the Court could direct reference and appoint an arbitrator when the named contractual arbitrator declined or was unable to act.

Analysis: Section 20 was construed liberally so that the Court could make an effective reference where the parties had not been able to secure an acting arbitrator under the agreement. The order under Section 20 was treated as including both filing of the agreement and reference, and the Court held that the statutory scheme did not prevent appointment of another arbitrator to give effect to the arbitration agreement. The architect's finality on matters reserved to him was preserved and could not be reopened in arbitration.

Conclusion: The issue was decided in favour of the appellant.

Final Conclusion: The application was maintainable, the disputes identified in the petition were referable to arbitration, and the Court directed filing of the agreement and reference to a substitute arbitrator while preserving the finality of the architect's decisions on excluded matters.

Ratio Decidendi: Where a contract contains a valid arbitration clause and the named arbitrator cannot or will not act, the Court may, to give effect to the arbitration agreement, direct filing of the agreement and appoint another arbitrator under the statutory scheme, provided the dispute is otherwise within the arbitration clause and the contractual finality of reserved matters is respected.

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