Leveraged Equities Pty Ltd v Huxley - [2010] NSWCA 179

New South Wales

Court of Appeal

CITATION: Leveraged Equities Pty Ltd v Huxley [2010] NSWCA 179

HEARING DATE(S): 19 July 2010

JUDGMENT DATE:
19 July 2010

JUDGMENT OF: Allsop ACJ at 1; Macfarlan JA at 18; Handley AJA at 19

EX TEMPORE JUDGMENT DATE: 19 July 2010

DECISION: 2008/281448 (the application for leave to appeal and appeal from equity suit 5497/2008)
1. Application for leave to appeal granted.
2. The notice of appeal to be filed within 14 days.
3. Appeal allowed.
4. Judgment and orders made in the Equity Division on 21 September 2009 be set aside and in lieu therefore it be ordered as follows:
(a) The appellant have leave to enforce the following arbitral awards made in its favour against each of the first to fifth respondents in the same manner as a judgment or order of the Court:
(i) awards made in favour of the appellant against Gregory John Huxley in the amounts of $868,710.56 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $15,472.56 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008;
(ii) awards made in favour of the appellant against Prudence Anne Wilkinson in the amounts of $886,887.69 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $19,713.66 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008;
(iii) awards made in favour of the appellant against Jason Wilkinson in the amounts of $891,885.50 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $15,615.46 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008;
(iv) awards made in favour of the appellant against Jeffrey Douglas Dawson in the amounts of $367,292.62 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $14,192.66 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008; and
(v) awards made in favour of the appellant against Nicholas Edward Hamilton in the amounts of $84,774.89 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $14,925.50 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008.
(b) Judgment in favour of the appellant against Gregory John Huxley in the amount of $1,026,144.78 plus interest from 19 July 2010.
(c) Judgment in favour of the appellant against Prudence Anne Wilkinson in the amount of $1,052,096.16 plus interest from 19 July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWCA 179
Decision Date: 19 July 2010

CaseChat Overview and Summary

Leveraged Equities Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against decisions of the Equity Division that had refused to enforce arbitral awards made in favour of the appellant against Gregory John Huxley, Prudence Anne Wilkinson, Jason Wilkinson, Jeffrey Douglas Dawson, and Nicholas Edward Hamilton (the respondents). The dispute concerned the enforceability of these awards, which the respondents sought to resist on the basis of a clause in their underlying agreements requiring them to "first try to settle" any disputes.

The primary legal issue before the Court of Appeal was whether the phrase "first try to settle" in the dispute resolution clause of the agreements evinced an intention that any subsequent arbitral award would not be final and binding. The court was required to determine the construction of this clause and its effect on the finality of the arbitral awards.

The Court of Appeal reasoned that the phrase "first try to settle" did not express a clear intention that an arbitral award would not be final and binding. The court held that such a clause typically indicates a procedural step to encourage amicable resolution before resorting to formal dispute resolution, but it does not negate the binding nature of an award once it has been made. The court applied principles of contractual construction, emphasizing that for an award to be rendered non-binding, the intention to that effect must be clearly and unequivocally expressed.

The appeal was allowed, and the previous judgments and orders of the Equity Division were set aside. The Court of Appeal ordered that the appellant have leave to enforce the arbitral awards against each of the respondents as if they were judgments of the court, specifying the amounts awarded and the applicable interest. The respondents were ordered to pay the appellant's costs of the application and the appeal.

Orders

Orders of the court

2008/281448 (the application for leave to appeal and appeal from equity suit 5497/2008)

1. Application for leave to appeal granted.

2. The notice of appeal to be filed within 14 days.

3. Appeal allowed.

4. Judgment and orders made in the Equity Division on 21 September 2009 be set aside and in lieu therefore it be ordered as follows:

(a) The appellant have leave to enforce the following arbitral awards made in its favour against each of the first to fifth respondents in the same manner as a judgment or order of the Court:

(i) awards made in favour of the appellant against Gregory John Huxley in the amounts of $868,710.56 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $15,472.56 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008;

(ii) awards made in favour of the appellant against Prudence Anne Wilkinson in the amounts of $886,887.69 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $19,713.66 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008;

(iii) awards made in favour of the appellant against Jason Wilkinson in the amounts of $891,885.50 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $15,615.46 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008;

(iv) awards made in favour of the appellant against Jeffrey Douglas Dawson in the amounts of $367,292.62 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $14,192.66 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008; and

(v) awards made in favour of the appellant against Nicholas Edward Hamilton in the amounts of $84,774.89 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $14,925.50 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008.

(b) Judgment in favour of the appellant against Gregory John Huxley in the amount of $1,026,144.78 plus interest from 19 July 2010.

(c) Judgment in favour of the appellant against Prudence Anne Wilkinson in the amount of $1,052,096.16 plus interest from 19 July 2010.

(d) Judgment in favour of the appellant against Jason Wilkinson in the amount of $1,053,211.03 plus interest from 19 July 2010.

(e) Judgment in favour of the appellant against Jeffrey Douglas Dawson in the amount of $442,605.97 plus interest from 19 July 2010.

(f) Judgment in favour of the appellant against Nicholas Edward Hamilton in the amount of $115,481.09 plus interest from 19 July 2010.

5. The respondents pay the appellant’s costs of this application for leave to appeal and appeal and at first instance.

6. The respondents to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified for the costs of the appeal.

2008/279972 (the appeal from equity suit 4032/2008)

1. Appeal allowed.

2. Judgment and orders made in the Equity Division on 21 September 2009 be set aside and in lieu thereof dismiss the summons 4032/2008.

3. The respondents pay the appellant’s costs of this appeal and at first instance.

4. The respondents to have a certificate under the Suitors' Fund Act if otherwise qualified for the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Leveraged Equities Pty Ltd v Huxley [2010] NSWCA 179
HEARING DATE(S):	19 July 2010
JUDGMENT DATE:	19 July 2010
JUDGMENT OF:	Allsop ACJ at 1; Macfarlan JA at 18; Handley AJA at 19
EX TEMPORE JUDGMENT DATE:	19 July 2010
DECISION:	2008/281448 (the application for leave to appeal and appeal from equity suit 5497/2008) 1. Application for leave to appeal granted. 2. The notice of appeal to be filed within 14 days. 3. Appeal allowed. 4. Judgment and orders made in the Equity Division on 21 September 2009 be set aside and in lieu therefore it be ordered as follows: (a) The appellant have leave to enforce the following arbitral awards made in its favour against each of the first to fifth respondents in the same manner as a judgment or order of the Court: (i) awards made in favour of the appellant against Gregory John Huxley in the amounts of $868,710.56 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $15,472.56 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008; (ii) awards made in favour of the appellant against Prudence Anne Wilkinson in the amounts of $886,887.69 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $19,713.66 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008; (iii) awards made in favour of the appellant against Jason Wilkinson in the amounts of $891,885.50 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $15,615.46 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008; (iv) awards made in favour of the appellant against Jeffrey Douglas Dawson in the amounts of $367,292.62 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $14,192.66 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008; and (v) awards made in favour of the appellant against Nicholas Edward Hamilton in the amounts of $84,774.89 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 18 August 2008 and $14,925.50 plus interest at the rate payable on a judgment debt of the Supreme Court of New South Wales from 13 October 2008. (b) Judgment in favour of the appellant against Gregory John Huxley in the amount of $1,026,144.78 plus interest from 19 July 2010. (c) Judgment in favour of the appellant against Prudence Anne Wilkinson in the amount of $1,052,096.16 plus interest from 19 July…