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…

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: [2004] NSWCA 146
Decision Date: 4 May 2004

CaseChat Overview and Summary

Tridon Australia Pty Ltd (the applicant) sought leave to appeal from a decision of the Supreme Court of New South Wales, which had refused its application for leave to enforce an interim award made by an arbitrator. The dispute concerned an arbitration between Tridon Australia Pty Ltd and ACD Tridon Inc (the respondent).

The primary legal issue before the Supreme Court was whether the applicant was entitled to obtain a judgment in terms of the interim award, which was in the form of declarations, for the purpose of enforcement. The court was required to determine the proper procedure for enforcing such an award under the relevant legislation.

The Supreme Court reasoned that an interim award in the form of declarations did not create a debt or obligation that was directly enforceable by entry of judgment. Instead, the court held that the applicant's recourse was to seek the arbitrator's final award, or to apply to the court for an order that the arbitrator's interim award be made an order of the court, which would then be enforceable. The court concluded that the applicant had not demonstrated that it had properly refused to enforce the award, as the application was misconceived.

Consequently, leave to appeal was refused, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

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

Background

Background to the litigation

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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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