Bathurst CJ at [1]; McColl JA at [196]; Young JA at [218]
Decision:
1. Leave to appeal granted
2. Appeals 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:
PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Arbitration clause - Construction of arbitration clauses.
PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Agreement to refer "any dispute under this deed" to arbitration - Construction - Whether claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction a "dispute under this deed" - Relevance of defences invoking deed.
PRACTICE AND PROCEDURE - Stay of proceedings - Referral to arbitration - Claim pursuant to Trustee Act 1962 (WA) and court's inherent and equitable jurisdiction - Claims by beneficiaries to remove a trustee and vary trust - whether arbitrable.
PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Referral to arbitration - Part of dispute within scope of arbitration clause - Whether error of discretion to refuse stay.
PRACTICE AND PROCEDURE - Stay of proceedings - Civil Procedure Act 2005 s 67 - Exercise of discretion - Mediation clause - Whether error not to refer to mediation.
Legislation Cited:
Building and Construction Industry Security of Payment Act (NSW) 1999 Civil Procedure Act 2005 (NSW) s 67 Commercial Arbitration Act 1985 (WA) s 33, s 37, s 38, s 39, s 40, s 53 Companies Act 2006 (UK) s 994 Corporations Act 2001 (CTH) s 232 Judiciary Act 1789 (US) s 25 Sherman Act 1890 (US) Trade Practices Act 1974 (CTH) s 82, s 87 Trustee Act 1962 (WA) s 42, s 77, s 79, s 85 s 90, s 94
[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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AGLC
Rinehart v Welker [2012] NSWCA 95
Case
[2012] NSWCA 95
Decision Date
CaseChat Overview and Summary
The case of *Rinehart v Welker* concerned an application for a stay of proceedings in favour of arbitration. The dispute arose between beneficiaries of a trust and a trustee, with the beneficiaries seeking the removal of the trustee and the variation of the trust. The trustee sought to enforce an arbitration clause contained within a deed, arguing that the beneficiaries' claims constituted "any dispute under this deed" and therefore fell within the scope of the arbitration agreement.
The central legal issues before the court were whether the claims brought by the beneficiaries, which invoked the *Trustee Act 1962* (WA) and the court's inherent and equitable jurisdiction, qualified as a "dispute under this deed" for the purposes of the arbitration clause. The court also considered whether the claims were arbitrable, and whether the primary judge had erred in exercising their discretion by refusing to grant a stay of proceedings and by not referring the matter to mediation, as provided for in the deed.
The court reasoned that the construction of the arbitration clause was paramount. It held that the claims, even though they invoked statutory and equitable jurisdiction, were intrinsically linked to the deed and the rights and obligations it created. The court found that the defences raised by the trustee invoked the deed, thereby bringing the dispute within its ambit. Furthermore, the court determined that the claims were capable of being arbitrated, and that the primary judge's refusal to grant a stay was not an error of discretion, particularly in light of the mediation clause which had not been invoked by the parties.
Leave to appeal was granted, but the appeals were ultimately dismissed with costs.
Orders
Orders of the court
1. Leave to appeal granted
2. Appeals 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.]