Passlow v Butmac Pty Ltd - [2012] NSWSC 225

Supreme Court

New South Wales

Medium Neutral Citation: Joel Passlow v Butmac Pty Ltd [2012] NSWSC 225
Hearing dates: 14 March 2012
Decision date: 16 March 2012
Jurisdiction: Common Law
Before: Adamson J
Decision:
Cross-defendant's amended notice of motion for stay filed on 14 March 2012:
(1) Stay the cross-claim in so far as it relates to the claim by the first cross-claimant.
(2) Refer the first cross-claimant and the cross-defendant to arbitration in respect of the cross-claim.
(3) Permit the cross-claim to proceed against the cross-defendant, only in so far as it is brought by the second cross-claimant.
(4) Vacate the direction made on 23 September 2011 requiring the cross-defendant to file its defence to the cross-claim by 7 November 2011.
(5) Order the first cross-claimant to pay the cross-defendant's costs of the motion.
Cross-defendant's notice of motion to set aside the notice to produce filed on 6 February 2012:
(1) Order the cross-claimants to pay the cross-defendant's costs of the motion.
Cross-claimants' notice of motion for discovery by categories filed on 13 February 2012:
(1) Order the cross-defendant, pursuant to UCPR 21.2(1), to provide discovery of the categories of documents outlined in paragraph 78 of this judgment.
(2) Order the cross-defendant to pay the cross-claimants' costs of the motion.

Catchwords: CONTRACT - construction - whether terms of contract are uncertain
PRACTICE AND PROCEDURE - arbitration clause -whether arbitration clause covers a claim for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946
PRIVATE INTERNATIONAL LAW - international arbitration - agreement to refer matter to international arbitration - mandatory stay
PRACTICE AND PROCEDURE - discovery - whether categories of document sought through discovery are oppressive in the instant case
Legislation Cited: International Arbitration Act 1974 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; 153 FLR 236
Austra Tanks Pty Ltd v Running [1982] 2 NSWLR 840
Comandate Marine v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45
Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709
Global Partners Fund Ltd v Babcock and Brown Ltd [2010] NSWCA 196
Gollin Holdings Limited v Adcock [1981] 1 NSWLR 691
Government Insurance Office of New South Wales v Atkinson-Leighton Joint Venture (1981) 146 CLR 206
Incitec Limited v Alkimos Shipping Corporation [2004] FCA 698; 138 FCR 496
Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589
United Group Rail Services Limited v Rail Corp New South Wales [2009] NSWCA 177; 74 NSWLR 618
Texts Cited: Rana and Sanson, International Commercial Arbitration (2011)
Category: Interlocutory applications
Parties: Joel Passlow (Plaintiff)
Butmac Pty Ltd (First Defendant/ First Cross-Claimant)
Automotive Holding Group (Second Defendant/ Second Cross-Claimant)
The Stable (Wagga) Pty Ltd (Third Defendant)
KTM-Sportmotorcycle AG (Cross-Defendant)
Representation: Counsel:
S Blount (Plaintiff)
DS Weinberger (First and Second Defendants/ Cross-Claimants)
SA Goodman (Cross-Defendant)

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: [2012] NSWSC 225
Decision Date: 16 March 2012

CaseChat Overview and Summary

Passlow was the owner of a property on which a building was constructed by Butmac. Following the construction, the building was found to be defective and Passlow sued Butmac for breach of contract. Butmac, in turn, sought to refer the dispute to arbitration, relying on an arbitration clause in their contract. Passlow opposed the referral, arguing that the arbitration clause was uncertain and did not cover the claim for contribution which Butmac had sought under the Law Reform (Miscellaneous Provisions) Act 1946. Passlow also opposed an application for discovery of documents, arguing that the categories of documents sought were oppressive. The matter came before the Supreme Court of New South Wales, which was required to decide whether the arbitration clause was valid and whether the claim for contribution was covered by it, as well as whether the categories of documents sought were oppressive.

The court held that the arbitration clause was valid and sufficiently certain, and that it covered the claim for contribution which Butmac had sought under the Act. The court found that the clause was clear and unambiguous and that it provided a complete method of resolving disputes between the parties. The court also held that the categories of documents sought through discovery were not oppressive, and that the application for discovery should be granted. The court found that the categories of documents were relevant to the dispute and that there were no other means of obtaining the information.

The Supreme Court of New South Wales ordered that the matter be referred to arbitration, and that Butmac and Passlow comply with the discovery orders made by the court. The court found that the arbitration clause was valid and enforceable, and that it covered the claim for contribution which Butmac had sought. The court also found that the categories of documents sought were relevant to the dispute and that there were no other means of obtaining the information. The matter was referred to arbitration and the parties were ordered to comply with the discovery orders made by the court.

Orders