M1 & Ors v L1 & Ors [2007] NSWSC 346

M1 & Ors v L1 & Ors [2007] NSWSC 346

On the proper construction of the Deed, read commercially and in context, the parties intended the named Wise Man to act as an expert with plenary powers to resolve disputes finally and bindingly, not as an arbitrator. The express provision that only if no such person was available would the matter be referred to binding arbitration under the Commercial Arbitration Act (NSW), together with the broad discretionary procedure, the expertise of the named candidates and the confidentiality context, showed that the Act was not engaged and the Court had no jurisdiction to entertain the summons. In any event, if the Act applied, leave to appeal would not have been granted because the plaintiffs...

Jurisdiction
Australia
Judgment Date
13 April 2007
Procedural Posture
Commercial List Proceedings Concerning Construction of a Deed and Application for Leave to Appeal Under the Commercial Arbitration Act 1984 (nsw) / Threshold Jurisdiction Question and Application for Leave to Appeal From the Wise Man's Decision
Outcome
The Court held that the Wise Man acted as an expert and the Commercial Arbitration Act 1984 (NSW) was not engaged; alternatively, leave to appeal would not have been granted.
Legal Topics
['construction of Commercial Deed' 'wise Man Dispute Resolution Mechanism' 'arbitration Agreement Versus Expert Determination' 'ouster of Jurisdiction' 'leave to Appeal From Arbitral Award' 'manifest Error of Law']
['contract Law' 'commercial Arbitration' 'expert Determination' 'civil Procedure'] ['construction of Commercial Deed' 'wise Man Dispute Resolution Mechanism' 'arbitration Agreement Versus Expert Determination' 'ouster of Jurisdiction' 'leave to Appeal From Arbitral Award' 'manifest Error of Law']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Commercial List Proceedings Concerning Construction of a Deed and Application for Leave to Appeal Under the Commercial Arbitration Act 1984 (nsw) / Threshold Jurisdiction Question and Application for Leave to Appeal From the Wise Man's Decision

Legal Issues

  1. 1 ['Whether clause 8 of the Deed appointed the Wise Man as an arbitrator or as an expert.' "Whether an expert determination mechanism for all disputes under the Deed was contrary to public policy as an ouster of the Court's jurisdiction." 'If the Wise Man was an arbitrator, whether leave to appeal should be granted under s 38(5) of the Commercial Arbitration Act 1984 (NSW).' 'Whether the expression "relevant taxation authorities" in clause 12.1(d)(v) of the Deed was confined to the Australian Tax Office and the United States Inland Revenue Service.' 'Whether clauses 6.5, 6.6 and 8.3 of the Deed restricted any appeal or review process involving disclosure of confidential information.']

Ratio Decidendi

On the proper construction of the Deed, read commercially and in context, the parties intended the named Wise Man to act as an expert with plenary powers to resolve disputes finally and bindingly, not as an arbitrator. The express provision that only if no such person was available would the matter be referred to binding arbitration under the Commercial Arbitration Act (NSW), together with the broad discretionary procedure, the expertise of the named candidates and the confidentiality context, showed that the Act was not engaged and the Court had no jurisdiction to entertain the summons. In any event, if the Act applied, leave to appeal would not have been granted because the plaintiffs...

Court Disposition

The Court held that the Wise Man acted as an expert and the Commercial Arbitration Act 1984 (NSW) was not engaged; alternatively, leave to appeal would not have been granted.

Orders

  • ['The parties are to bring short minutes of order, on which occasion costs may be argued.']