Rinbridge Marketing Pty Ltd v Rinbridge Pty Ltd

[1995] FCA 1089

CATCHWORDS

CONTRACTS - construction and interpretation - arbitration clauses - dispute whether agreement void ab initio - Trade Practices Act 1974, s. 52 - Scott v Avery clause severable from main agreement and effective where 'sufficiently wide to embrace the dispute or difference which has arisen between the parties'.

Trade Practices Act 1974: s. 52

RINBRIDGE MARKETING PTY LIMITED v RINBRIDGE PTY LIMITED, JOHN PROSPHER CULLEN and PETER THOMAS WALSH
G 723 of 1994

LOCKHART J.
1 DECEMBER 1995
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No.  G723   of  1994
  )
GENERAL DIVISION                 )

BETWEEN:RINBRIDGE MARKETING PTY LIMITED

Applicant

AND:RINBRIDGE PTY LIMITED

First Respondent

JOHN PROSPHER CULLEN

Second Respondent

PETER THOMAS WALSH

Third Respondent

RINBRIDGE PTY LIMITED

Cross Claimant

RINBRIDGE MARKETING PTY LIMITED

Cross Defendant

JUDGE MAKING ORDER:     LOCKHART J.
             WHERE ORDER MADE:       SYDNEY
             DATE ORDER MADE:        1 DECEMBER 1995

MINUTE OF ORDER
THE COURT ORDERS THAT:

1. The proceeding and the cross-claim be dismissed.

1. The applicant pay the costs of the respondent of the proceeding, including the costs of the motion and reserved costs, if any.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No.  G723   of  1994
  )
GENERAL DIVISION                 )

BETWEEN:RINBRIDGE MARKETING PTY LIMITED

Applicant

AND:RINBRIDGE PTY LIMITED

First Respondent

JOHN PROSPHER CULLEN

Second Respondent

PETER THOMAS WALSH

Third Respondent

RINBRIDGE PTY LIMITED

Cross Claimant

RINBRIDGE MARKETING PTY LIMITED

Cross Defendant

1 December 1995

REASONS FOR JUDGMENT
LOCKHART J.
     On 23 October 1995 I gave judgment in this matter.  I concluded that the giving of a notice of dispute pursuant to clause 24(a) of the relevant agreement between the parties is a condition precedent to the commencement by the applicant of the proceeding; and that as no such notice was given the proceeding should be dismissed.

I made no orders on 23 October but stood the matter over to 17 November 1995 so that the parties could consider my reasons for judgment and make brief submissions concerning the appropriate orders to be made, in particular whether the
proceeding should be dismissed or the statement of claim struck out.  The motion that was before the Court sought an order that the statement of claim be 'struck out' pursuant to O. 11 r. 15 of the Rules.

The respondents filed a defence to the statement of claim together with a cross-claim.

The cross-claim seeks to agitate issues between the parties concerning alleged breach of the agreement by the applicant and seeks damages.

On 17 November 1995 the parties were not in a position to argue the question of the appropriate orders so I gave directions for the filing of brief written submissions on this question.  The submissions have since been lodged with my associate and I have read them.  All parties have submitted that the appropriate order is that the proceeding be dismissed, not that the statement of claim be struck out.  In my opinion this is the appropriate order to make.

The cross-claim should also be dismissed.  Once the applicant has given notice, assuming it does, pursuant to clause 24(a) of the agreement, assuming it is still entitled to do so, the whole dispute between the parties can be litigated in the appropriate court including the matters raised by the cross-claim.
     The order of the Court is that the proceeding and the cross-claim be dismissed, and the applicant pay the costs of the respondent of the proceeding, including the costs of the motion and reserved costs, if any.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  1 December  1995

Counsel for the Applicant     :        Mr D E Grieve QC

Mr G F Cohen

Solicitors for the Applicant  :        Cutri & Associates

Counsel for the Respondents   :        Mr J S Drummond

Solicitors for the Respondents:        Walsh & Blair

Date of Judgment            :        1 December 1995