Leveraged Equities Pty Ltd v Huxley

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.