Paul Rawson Investments Pty Ltd & Anor v James Boon Corporation Pty Ltd & Ors [2022] NSWSC 613

Paul Rawson Investments Pty Ltd & Anor v James Boon Corporation Pty Ltd & Ors [2022] NSWSC 613

Even assuming the Plaintiffs' solicitor's account of the first directions hearing was correct, the expression "subject to any right of appeal" was objectively neutral and recognised only the possibility that a right of appeal might or might not exist; it did not amount to an agreement that an appeal on a question of law could be made under s 34A of the Commercial Arbitration Act 2010 (NSW). The later correspondence about acceptance of service and expedition did not go beyond procedural matters and did not create or admit a substantive appeal right. Because no agreement satisfying s 34A(1)(a) existed, the Summons seeking leave to appeal failed.

Jurisdiction
Australia
Judgment Date
10 May 2022
Procedural Posture
Summons Seeking Leave to Appeal From Arbitral Awards and Orders Recognising Arbitration Awards / Determination of Whether the Parties Agreed That an Appeal Lies to the Court on a Question of Law Under S 34 A(1) of the Commercial Arbitration Act 2010 (nsw)
Outcome
Summons dismissed; arbitration awards recognised and ordered to be enforced; Plaintiffs ordered to pay the Defendants' costs.
Legal Topics
['leave to Appeal From Arbitral Award' 'appeal on Question of Law' 'agreement to Opt in to Appeal Regime' 'recognition and Enforcement of Arbitral Awards' 'ostensible Authority of Solicitors']
['civil Procedure' 'arbitration' 'agency'] ['leave to Appeal From Arbitral Award' 'appeal on Question of Law' 'agreement to Opt in to Appeal Regime' 'recognition and Enforcement of Arbitral Awards' 'ostensible Authority of Solicitors']

Case Brief

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Procedural Posture

Summons Seeking Leave to Appeal From Arbitral Awards and Orders Recognising Arbitration Awards / Determination of Whether the Parties Agreed That an Appeal Lies to the Court on a Question of Law Under S 34 A(1) of the Commercial Arbitration Act 2010 (nsw)

Legal Issues

  1. 1 ['Whether the parties agreed that an appeal could be made to the Court on a question of law arising out of the arbitral awards for the purposes of s 34A(1)(a) of the Commercial Arbitration Act 2010 (NSW).' 'Whether statements at the first directions hearing in the arbitration, including the expression "subject to any right of appeal", constituted an ad hoc agreement to a right of appeal under s 34A of the Commercial Arbitration Act 2010 (NSW).' 'Whether correspondence about acceptance of service and expedition of any appeal amounted to, or supported, an agreement to a right of appeal under s 34A of the Commercial Arbitration Act 2010 (NSW).' "Whether the solicitors had ostensible authority to agree to a substantive right of appeal not contained in the parties' substantive agreement."]

Ratio Decidendi

Even assuming the Plaintiffs' solicitor's account of the first directions hearing was correct, the expression "subject to any right of appeal" was objectively neutral and recognised only the possibility that a right of appeal might or might not exist; it did not amount to an agreement that an appeal on a question of law could be made under s 34A of the Commercial Arbitration Act 2010 (NSW). The later correspondence about acceptance of service and expedition did not go beyond procedural matters and did not create or admit a substantive appeal right. Because no agreement satisfying s 34A(1)(a) existed, the Summons seeking leave to appeal failed.

Court Disposition

Summons dismissed; arbitration awards recognised and ordered to be enforced; Plaintiffs ordered to pay the Defendants' costs.

Orders

  • ['The Summons filed by the Plaintiffs on 18 March 2022 be dismissed.' 'Order under s 35 of the Commercial Arbitration Act 2010 (NSW) that the First Award dated 1 June 2021, with typographical errors corrected on 24 June 2021, made by Mr D F Jackson QC AM, Arbitrator, is to be recognised in New South Wales as...