Ashjal Pty Ltd v Elders Toepfer Grain Pty Ltd

The plaintiff, Ashjal Pty Ltd, initiated proceedings against the defendant, Elders Toepfer Grain Pty Ltd, seeking a declaration that there was an agreement to arbitrate under s 34A(1) of the Commercial Arbitration Act 2010 (NSW). The dispute arose from the interpretation of the written contracts between the parties, which the plaintiff argued contained an implied term amounting to an agreement to arbitrate. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the written contracts between Ashjal Pty Ltd and Elders Toepfer Grain Pty Ltd included an implied term that constituted an agreement to arbitrate as per s 34A(1) of the Commercial Arbitration Act 2010 (NSW). The court needed to determine whether such an implied term met the established tests for implication in fact or law. Specifically, the court examined whether the term was necessary for the reasonable or effective operation of the contract and whether it was so obvious that it went without saying.

The court found that the implied term contended for by the plaintiff did not meet the established tests for implication. The court held that the term was not necessary for the reasonable or effective operation of the contract and did not go without saying. The written contracts between the parties did not provide a sufficient basis to imply an agreement to arbitrate. Consequently, the plaintiff's claim for a declaration that there was an agreement to arbitrate under s 34A(1) of the Commercial Arbitration Act 2010 (NSW) was dismissed. The court concluded that the implied term was not sufficiently supported by the evidence or the principles of contract law.

The final orders of the court were that Ashjal Pty Ltd's claim for a declaration that there was an agreement to arbitrate under s 34A(1) of the Commercial Arbitration Act 2010 (NSW) was dismissed. The court also awarded costs of the proceeding to Elders Toepfer Grain Pty Ltd.