Cargill Australia Limited v Oroonoka Pty Limited
[2011] NSWSC 620
•21 June 2011
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Cargill Australia Limited -v- Oroonoka Pty Limited [2011] NSWSC 620 Hearing dates: 21 June 2011 Decision date: 21 June 2011 Jurisdiction: Equity Division - Commercial Arbitration List Before: Hammerschlag J Decision: Judgment for the plaintiff against the defendant in the sum of $362,257.30, interest and costs
Catchwords: COMMERCIAL ARBITRATION - enforcement of award - no issue of principle Legislation Cited: Commercial Arbitration Act 1984 (NSW)
Civil Procedure Act 2005 (NSW)Category: Principal judgment Parties: Cargill Australia Limited - Plaintiff
Oroonoka Pty Limited - DefendantRepresentation: Counsel:
A.J. McInerney SC - Plaintiff
Solicitors:
Ellison Tillyard Callanan - Plaintiff
File Number(s): 2011/115780
EX TEMPORE Judgment
HIS HONOUR: Section 33(1) of the Commercial Arbitration Act 1984 (NSW) ("the Act") provides that:
An award made under an arbitration agreement may, by leave of the Court, be enforced in the same manner as a judgment or order of the Court to the same effect, and where leave is so given, judgment may be entered in terms of the award.
"Arbitration agreement" is defined in s 4(1) of the Act to mean an agreement in writing to refer present or future disputes to arbitration.
The plaintiff and the defendant entered into a written contract dated 6 July 2007 for the supply by the defendant to the plaintiff of gritting maize. Clause 15A of the contract provides as follows:
Any dispute arising out of or relating to this contract or the breach, termination or subject matter thereof shall be submitted to and settled by arbitration in accordance with the NACMA Trade and Arbitration Rules current at the date of the contract.
NACMA is an acronym for the National Agricultural Commodities Marketing Association Limited. The defendant defaulted in its obligations under the contract and the plaintiff claimed damages and called for arbitration. Messrs Jack Fahey, Richard Clark and Henry Wells were appointed arbitrators.
The evidence before the Court includes the plaintiff's (claimant in the arbitration) claim in the arbitration and various other pleadings.
The arbitration culminated in an award by the three arbitrators against the defendant (respondent in the arbitration).
The award allowed the plaintiff's claim for damages for default. The relevant provisions of the award are in the following terms:
1. The claim is allowed.
2. The respondent shall reimburse the claimant for the total cost of replacement, totalling $355,557.30.
3. The respondent shall reimburse the claimant for the cost of the NACMA arbitration fees totalling $6,700.
4. The respondent shall pay the claimant's costs on a party/party basis, and expenses including relevant fees payable to NACMA, the parties are directed to attempt to settle costs between them within the next 14 days, failing which the costs shall be assessed by the Supreme Court of New South Wales in accordance with section 34(1)(c) of the Commercial Arbitration Act (NSW) 1984.
The plaintiff now moves for an order pursuant to s 33 of the Act.
I am satisfied that the proceedings have been validly served on the defendant. However, there is some confusion in the records maintained by the Australian Securities and Investments Commission as to the correct address of the defendant's registered office. Those records contain some typographical errors. The errors are explained in material before the Court but more importantly, a firm of solicitors wrote to the plaintiff's solicitors on 3 May 2011 making it clear that the proceedings had been brought to the attention of their client. I am satisfied that steps have been taken for the purpose of bringing the process to the notice of the defendant, in any event.
In these circumstances and insofar as it is necessary, I order pursuant to Uniform Civil Procedure Rules Pt 10 r 10.14(2) that the Summons and Commercial List Statement is taken to have been served on the defendant on 10 May 2011.
The plaintiff has satisfied the requirements for an order in terms of s 33 of the Act.
The orders of the Court are as follows:
1. The plaintiff has leave to enforce the final award dated 21 November 2008 by Messrs Jack Fahey, Richard Clark and Henry Wells as a judgment of the Court.
2. Judgment for the plaintiff against the defendant in the sum of $362,257.30.
3. The defendant is to pay interest on the said sum at the rates prescribed pursuant to s 100 of the Civil Procedure Ac t 2005 (NSW) from 21 November 2008 to 21 June 2011 inclusive.
4. The defendant is to pay the plaintiff's costs of the proceedings and its costs of the arbitration.
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Amendments
30 June 2011 - Amendment to counsel's name.
Amended paragraphs: Coversheet
Decision last updated: 30 June 2011
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