24 VLR 4FALKINGHAM v. THE VICTORIAN RAILWAYS COMMISSIONERS Supreme Court of Victoria (Full Court) WILLIAMS, HOLROYD, and HODGES, JJ. March 29, 31 March 1898Arbitration — Railway contract — Penalties for delay, deduction of — Action on award — Award bad in part — Non-referable items, consideration of by arbitrators.
By a clause in a railway contract it was provided that for every day’s delay after a certain day fixed for the completion of the contract the contractors should be liable to the Railways Commissioners in a sum of 15l. per day. It was further provided in the same clause that there should be no interference in the operation of this condition unless the Engineer-in-Chief by writing suspended the running of the time fixed or allowed some remission of the fine and unless and until the Engineer-in-Chief should so act by writing as aforesaid, the contractors should not be relieved from their liability for such penalties, nor should the Commissioners be deprived of their right to deduct or set off such penalties. By another clause it was provided that "all matters" left to the decision of the Engineer-in-Chief, and "all claims and demands of every kind . . . . by the corporation against the contractors under or arising out of the contract" should be left to the determination of the Engineer-in-Chief subject to the right of the parties if dissatisfied with such determination to proceed to arbitration in a certain way.