Tridon Australia Pty Ltd v ACD Tridon Inc - [2004] NSWCA 146

NEW SOUTH WALES COURT OF APPEAL

CITATION: Tridon Australia Pty Ltd & Anor v ACD Tridon Inc (Incorporated in Ontario) [2004] NSWCA 146

FILE NUMBER(S):
40034/04

HEARING DATE(S): 4 May 2004

JUDGMENT DATE: 04/05/2004

PARTIES:
Tridon Australia Pty Ltd - First Claimant
Tridon New Zealand Ltd - Second Claimant
ACD Tridon Inc - Opponent

JUDGMENT OF: Handley JA Giles JA Santow J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 50100/03

LOWER COURT JUDICIAL OFFICER: Smart AJ

COUNSEL:
M Jacobs QC & P Bambagiotti - Claimants
S Finch SC - Opponent

SOLICITORS:
Cutler Hughes & Harris - Claimants
Allens Arthur Robinson - Opponent

CATCHWORDS:
Arbitration - interim award in form of declarations - application for leave to enforce award - only by obtaining judgment in terms of award - no question of enforcement - have properly refused. ND

LEGISLATION CITED:
Commercial Arbitration Act 1984. s 33

DECISION:
Leave to appeal refused. Claimants to pay the opponent's costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40034/04
HANDLEY JA
GILES JA
SANTOW JA
Tuesday 4 May 2004

TRIDON AUSTRALIA PTY LTD& ANOR v ACD TRIDON INC

Judgment

GILES JA: This is an application for leave to appeal from a decision of Smart AJ given on 19 December 2003, in which his Honour refused to make an order under s 33 of the Commercial Arbitration Act 1984 (“the Act”) giving leave to enforce an interim award (described by the learned arbitrator as a partial award) of the Honourable Andrew Rogers QC dated 30 June 2003. The application has been heard on full submissions, so that if leave were given the appeal could be determined without a further hearing.
The learned arbitrator was appointed to determine a complex series of disputes. In the manner described in the interim award, there were isolated five issues for separate decision. They were decided, and the arbitrator made an award in the form of declarations as to the result of the decision of those issues. In broad terms, they were declarations as to whether certain conduct was in breach of an agreement between the parties to the arbitration and whether a purported termination of the agreement was effective.
Applications were made to have the award set aside on the ground of technical misconduct and in the alternative for leave to appeal pursuant to s 38 of the Act. Smart AJ heard those applications and dismissed them. A counter-application was made for an order under s 33 of the Act and in subsequent reasons published after receiving written submissions from the parties his Honour declined to make that order.
Section 33 of the Act provides -
“33 Enforcement of award
(1)An award made under an arbitration agreement may, by leave of the Court, be enforced in the same manner as a judgment or order of the Court to the same effect, and where leave is so given, judgment may be entered in terms of the award.”
Smart AJ declined to make the order essentially because there was no utility in making it. His Honour contemplated the possibility that declarations made by arbitrators could be enforced in the same manner as a judgment or order of the Court, was of the view that there was no utility in this case in granting leave to enforce the declarations.
It is important to note that s 33 begins by referring to enforcement by leave, the entry of judgment in terms of the award being consequential upon the grant of leave. The first question, then, must be what is desired by way of enforcement, and it is only when that question is asked and satisfactorily answered that there can be sensible attention to whether leave should be granted.
When the question was asked in the present application two answers were given.
The first answer was that there is no discretion under s 33, and that the applicant for an order pursuant to that provision is entitled as of right to the entry of judgment in terms of the award. Exceptions to this were recognised, but it was submitted that the exceptions went to jurisdictional facts enlivening the entry of judgment in terms of the award. Reference was made to Russell on Arbitration, 21st ed, para 8-003.
I do not agree that there is no discretion. It is connoted by the words “by leave of the Court” in s 33, and the paragraph in Russell on Arbitration clearly shows that there is a discretion. But in any event the purported answer is not an answer to the question. It is still necessary to know what is meant by enforcement and what is intended by way of enforcement in order to determine whether leave should be given.
That takes one to the second answer, which was that there was an entitlement to have not just the declarations in the interim award, but declarations which would “speak to the world” through being translated into a judgment entered in terms of the award. It was submitted that that translation was itself enforcement.
I do not think that it is. Enforcement is a plain word, and means something quite different from a restatement of the effect of the award in the form of a judgment. The summary procedure provided by s 33 of the Act is a procedure with a purpose, the purpose of enabling the victorious party in an arbitration to obtain the material benefit of the award in its favour in an easier manner than having to sue on the award. There has been nothing put forward in this case to suggest any occasion for enforcement of the declarations made in the interim award. They are binding on the parties, and bind them for the balance of the arbitration and beyond that.
I agree with Smart AJ’s view that there is no utility in making the order sought, but for the perhaps more fundamental reason that there is just no question of enforcement yet arising. In the absence of any question of enforcement arising, it would not be appropriate to grant leave to enforce the award.
In my opinion there is really nothing to be said in favour of a grant of leave to appeal, and I would refuse leave to appeal and order that the claimant pay the opponent’s costs.
HANDLEY JA: I agree.
SANTOW JA: I agree. I would only add this, that when s 33 is read carefully it is apparent that the qualifying words “by leave of the Court” apply to an application to enforce an award under the summary procedure, thus re-enforcing the discretionary aspect connoted by the word “may”. However where leave is so given s 33 concludes with the words “judgment may be entered in terms of the award”. The latter expression unaccompanied by repetition of the words “by leave of the Court” may indicate that judgment would ordinarily or perhaps automatically follow once leave of the Court is given to enforce.
It was apparent from the answers given by Mr Jacobs QC to questions from the bench that his real purpose was simply to have judgment entered. In those circumstances one cannot, as it were, escape the need to satisfy the requirement of leave of the Court with its clear conferral of discretion upon the Court in the manner pressed by counsel. I therefore agree with what has been said by Giles J.
HANDLEY JA: The orders of the Court will be as announced. The Court will now adjourn.
**********

LAST UPDATED: 07/05/2004