Icon Si (Aust) Pty Ltd v Australian Nuclear Science and Technology Organisation [2024] NSWSC 324

Icon Si (Aust) Pty Ltd v Australian Nuclear Science and Technology Organisation [2024] NSWSC 324

The waiver of expert determination in the amendment deed was not intended to waive arbitration. The arbitration clause continues to apply to unresolved disputes, and the correct construction, having regard to the deed's language and purpose, is that disputes are to be referred to arbitration. The proceedings should therefore be stayed and referred to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW).

Jurisdiction
Australia
Judgment Date
02 April 2024
Procedural Posture
Notice of Motion in Equity Proceedings (technology and Construction List) / Stay Application and Referral to Arbitration
Outcome
Proceedings stayed and parties referred to arbitration; costs to defendant.
Legal Topics
['interpretation of Arbitration Agreements' 'stay of Proceedings' 'construction Contracts' 'dispute Resolution Clauses']
['commercial Arbitration' 'contracts'] ['interpretation of Arbitration Agreements' 'stay of Proceedings' 'construction Contracts' 'dispute Resolution Clauses']

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Procedural Posture

Notice of Motion in Equity Proceedings (technology and Construction List) / Stay Application and Referral to Arbitration

Legal Issues

  1. 1 ['Whether the arbitration agreement in the contract remains operative following the amendment deed waiving expert determination' 'Whether the proceedings should be stayed and the parties referred to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW)']

Ratio Decidendi

The waiver of expert determination in the amendment deed was not intended to waive arbitration. The arbitration clause continues to apply to unresolved disputes, and the correct construction, having regard to the deed's language and purpose, is that disputes are to be referred to arbitration. The proceedings should therefore be stayed and referred to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW).

Court Disposition

Proceedings stayed and parties referred to arbitration; costs to defendant.

Orders

  • ['Pursuant to s 8(1) of the Commercial Arbitration Act 2010 (NSW) the parties be referred to arbitration for the resolution of the disputes the subject of these proceedings.' 'Pursuant to s 67 of the Civil Procedure Act 2005 (NSW) these proceedings be stayed.' "The plaintiff to pay the defendant's costs of the...