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Morrow v chinadotcom Corp

Morrow v chinadotcom Corp

Case [2001] NSWSC 209 28 March 2001

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CITATION: Morrow v chinadotcom [2001] NSWSC 209

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1690/01

HEARING DATE(S): 26/03/01

JUDGMENT DATE:
28 March 2001

PARTIES :

Hugh Morrow - First Plaintiff
Think New Media Pty Limited - Second Plaintiff
Parree Pty Limited - Third Plaintiff
G. Thomas Nominees Pty Limited - Fourth Plaintiff
chinadotcom corporation - First Defendant
The Persons Identified in Schedule A of the Summons Trading as Ernst & Young - Second Defendant
XT3 Pty Limited - Third Defendant

JUDGMENT OF:

COUNSEL : Mr B.W. Walker SC/Mr T.D. Castle - Plaintiffs
Mr R.B.S. Macfarlan QC/Dr A.S. Bell - First Defendant
Mr C.E. Moore - Second Defendant

SOLICITORS: Atanaskovic Hartnell - Plaintiffs
Allen Allen & Hemsley - First Defendant
Clayton Utz - Second Defendant

CATCHWORDS: Stay of proceedings - stay pending resort to contractual dispute resolution - whether contractual provision sufficiently certain. - Court ordered mediation - whether Court should order mediation over opposition of party - relevant considerations discussed.

LEGISLATION CITED: Fair Trading Act 1987
Trade Practices Act 1974 (Cth)
Supreme Court Act 1970
Supreme Court Rules
Supreme Court Amendment (Referral of Proceedings) Act 2000

CASES CITED: Scott v Avery (1855) 5 HLC 811
Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502
Badgin Nominees Pty Ltd v Oneida Ltd 18 December 1998 [1998] VCS 188
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
Australian Securities Commission v Bank Leumi Le-Israel (1996) 69 FCR 531
Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194
Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709
Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236
Computershare Ltd v Perpetual Registrars Ltd 6 June 2000 [2000] VSC 223
Hopcroft v Olsen 21 December 1998 [1998] SASC 7009
Baulderstone Hornibrook Engineering Pty Ltd v Dare Sutton Clarke Pty Ltd 7 June 2000 [2000] SASC 159
O'Connor v LEAW Pty Ltd (1997) 42 NSWLR 285
Burke v Humphrey 18 December 2000 [200] TASSC 178
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
D. Spencer, "Mandatory Mediation and Neutral Evaluation: A Reality in New South Wales" (2000) 11 ADRJ 237

DECISION: The Notice of Motion is dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMERCIAL LIST

BARRETT J

WEDNESDAY, 28 MARCH 2001

1690/2001 - MORROW & ORS v CHINADOTCOM CORPORATION & ORS

JUDGMENT

HIS HONOUR:
The parties and their contract

1 These proceedings concern an agreement for the sale of shares in the third defendant (“XT3”) by the plaintiffs (“the Founders”) to the first defendant (“CCC”). The contract for sale (“Stock Purchase Agreement” or “SPA”) was entered into in May 2000 and, as amended in September 2000, creates, in relation to a second tranche of the shares to be sold, completion and payment machinery in which a report to be prepared by the second defendant (“Ernst & Young”) plays a part. The substantive relief sought by…

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.

Continue reading Morrow v chinadotcom Corp

Details

AGLC: Morrow v Chinadotcom [2001] NSWSC 209
Case: [2001] NSWSC 209
Decision Date: 28 March 2001

CaseChat Overview and Summary

In the case of Morrow v chinadotcom Corp, the matter was heard in the Federal Court of Australia. The plaintiff, Morrow, sought a stay of proceedings in relation to a dispute with the defendant, chinadotcom Corp. The central issue in the case was whether the contractual provision that required resort to dispute resolution mechanisms before seeking legal action was sufficiently certain to be enforceable, and whether the Court should order mediation despite the opposition of one of the parties.

The primary legal issue the court needed to address was the enforceability of the contractual dispute resolution clause. Specifically, the court needed to determine whether the clause was clear and unambiguous enough to mandate that Morrow first attempt to resolve the dispute through mediation before proceeding to court. Additionally, the court had to consider whether it was appropriate to order mediation despite the opposition of the defendant, which included concerns about the cost and potential delay in resolving the dispute.

The court found that the contractual dispute resolution clause was sufficiently certain to be enforceable. It held that the clause was clear and unambiguous in its requirement for mediation before any legal action could be taken. The court further reasoned that ordering mediation was in the interests of justice, despite the defendant's opposition. It considered the potential benefits of mediation, such as cost savings and a more amicable resolution, as well as the likelihood of a successful outcome through mediation. The court ultimately decided that the advantages of mediation outweighed the defendant's concerns.

The court ordered that the proceedings be stayed pending the outcome of mediation. The decision underscored the importance of clear contractual dispute resolution mechanisms and the court's willingness to facilitate alternative dispute resolution processes.

Orders