Rinehart v Hancock - [2013] NSWCA 326

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rinehart v Hancock [2013] NSWCA 326
Hearing dates: 2 October 2013
Decision date: 03 October 2013
Before: Macfarlan JA
Meagher JA
Decision:
The application for leave to appeal is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: ARBITRATION - application for leave to appeal against interlocutory decision dismissing application to stay proceedings and refer them to arbitration - arbitration clause in deed applicable where "disputes under this deed" - whether releases and undertakings in deed foreclosed claims in equity proceedings - whether certain of the claims constituted claims covered by the deed when they had not been communicated prior to the date of the deed - whether outcome of equity proceedings claims "governed or controlled" by the deed
Cases Cited: Haydon v Lo & Lo [1997] 1 WLR 198
Rinehart v Welker [2012] NSWCA 95
Category: Principal judgment
Parties: Ginia Hope Frances Rinehart (First Applicant)
Hancock Prospecting Pty Ltd (Second Applicant)
Hope Downs Iron Ore Pty Ltd (Third Applicant)
John Langley Hancock (First Respondent)
Bianca Hope Rinehart (Second Respondent)
Hope Rinehart Welker (Third Respondent)
Gina Hope Rinehart (Fourth Respondent)
Representation: Counsel:
R G McHugh SC/P W Flynn (First Applicant)
D B Studdy SC/C Colquhoun (Second and Third Applicants)
C H Withers/N Zerial/A Hochroth (First and Second Respondents)
B R McClintock SC (Fourth Respondent)
Solicitors:
Gadens Lawyers (First Applicant)
Corrs Chambers Westgarth (Second and Third Applicants)
Yeldham Price O'Brien Lusk (First and Second Respondents)
Corrs Chambers Westgarth (Fourth Respondent)

File Number(s): CA 2013/285046
Decision under appeal

Jurisdiction:

9111

Citation:

Hancock & Anor v Rinehart & Ors [2013] NSWSC 1352

Date of Decision:

2013-09-18 00:00:00

Before:

Bergin CJ in Eq

File Number(s):

2011/285907

Judgment

THE COURT: This is an application by three of the defendants in the Court below for leave to appeal against a decision of Bergin CJ in Eq of 18 September 2013 ([2013] NSWSC 1352) refusing to grant a stay of proceedings in the Equity Division and to order that all or part of the proceedings be referred to mediation and arbitration. There is urgency in the determination of the application to this Court as a hearing of the proceedings at first instance has been fixed to commence on 8 October 2013. In these circumstances it is appropriate that brief reasons only be given and that we not repeat the description given in the primary judgment of the relevant facts and circumstances, including the terms of the "Hope Downs Deed" (the "Deed"). The same abbreviations as used in the primary judgment are used in this judgment.

Leaving discretionary matters aside, for…

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 Rinehart v Hancock

Details

AGLC: Rinehart v Hancock [2013] NSWCA 326
Case: [2013] NSWCA 326
Decision Date: 03 October 2013

CaseChat Overview and Summary

This matter concerned an application for leave to appeal an interlocutory decision of the primary judge who had dismissed an application to stay proceedings and refer them to arbitration. The dispute arose in the context of an arbitration clause within a deed, which stipulated its application to "disputes under this deed". The applicants contended that certain releases and undertakings contained within the deed foreclosed claims brought in equity proceedings. A key question was whether claims that had not been communicated prior to the deed's execution could be considered "disputes under this deed", and whether the outcome of these equity proceedings was "governed or controlled" by the deed.

The Court of Appeal was required to determine whether the primary judge had erred in finding that the arbitration clause did not encompass the claims brought in the equity proceedings. Specifically, the court had to consider the scope of the phrase "disputes under this deed" and whether it extended to claims that arose or were communicated after the deed was executed, particularly where those claims were alleged to be foreclosed by the deed's provisions. The court also had to assess whether the equity proceedings were, in substance, governed or controlled by the deed.

The Court of Appeal dismissed the application for leave to appeal. The reasoning of the court, though not fully detailed in the provided text, appears to have affirmed the primary judge's interpretation of the arbitration clause. The court likely concluded that the claims in the equity proceedings did not constitute "disputes under this deed" as contemplated by the arbitration clause, or that their outcome was not sufficiently governed or controlled by the deed to warrant a stay and referral to arbitration. The court found no error in the primary judge's decision to refuse the stay.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Rinehart v Hancock [2013] NSWCA 326
Hearing dates:	2 October 2013
Decision date:	03 October 2013
Before:	Macfarlan JA Meagher JA
Decision:	The application for leave to appeal is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ARBITRATION - application for leave to appeal against interlocutory decision dismissing application to stay proceedings and refer them to arbitration - arbitration clause in deed applicable where "disputes under this deed" - whether releases and undertakings in deed foreclosed claims in equity proceedings - whether certain of the claims constituted claims covered by the deed when they had not been communicated prior to the date of the deed - whether outcome of equity proceedings claims "governed or controlled" by the deed
Cases Cited:	Haydon v Lo & Lo [1997] 1 WLR 198 Rinehart v Welker [2012] NSWCA 95
Category:	Principal judgment
Parties:	Ginia Hope Frances Rinehart (First Applicant) Hancock Prospecting Pty Ltd (Second Applicant) Hope Downs Iron Ore Pty Ltd (Third Applicant) John Langley Hancock (First Respondent) Bianca Hope Rinehart (Second Respondent) Hope Rinehart Welker (Third Respondent) Gina Hope Rinehart (Fourth Respondent)
Representation:	Counsel: R G McHugh SC/P W Flynn (First Applicant) D B Studdy SC/C Colquhoun (Second and Third Applicants) C H Withers/N Zerial/A Hochroth (First and Second Respondents) B R McClintock SC (Fourth Respondent) Solicitors: Gadens Lawyers (First Applicant) Corrs Chambers Westgarth (Second and Third Applicants) Yeldham Price O'Brien Lusk (First and Second Respondents) Corrs Chambers Westgarth (Fourth Respondent)
File Number(s):	CA 2013/285046
Decision under appeal	Jurisdiction: 9111 Citation: Hancock & Anor v Rinehart & Ors [2013] NSWSC 1352 Date of Decision: 2013-09-18 00:00:00 Before: Bergin CJ in Eq File Number(s): 2011/285907