Broken Hill City Council v Unique Urban Built Pty Ltd [2018] NSWSC 825

Broken Hill City Council v Unique Urban Built Pty Ltd [2018] NSWSC 825

The arbitration agreement was operative. Clause 42.2 was the arbitration agreement and cl 42.3 was a machinery provision for appointment of an arbitrator. The non-existence of the President of the Australasian Dispute Centre affected only the nominated appointment mechanism, not the agreement to arbitrate. The Commercial Arbitration Act 2010 (NSW), particularly s 11, could fill the gap if the parties had not agreed on an effective appointment procedure or if the agreed procedure failed. Therefore s 8(1) required referral of the Council and Urban to arbitration.

Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Equity Technology and Construction List; Application Under S 8(1) of the Commercial Arbitration Act 2010 (nsw) / Amended Notice of Motion by the First Defendant for Referral of the Plaintiff and First Defendant to Arbitration
Outcome
Pursuant to s 8(1) of the Commercial Arbitration Act 2010 (NSW), the plaintiff and first defendant were referred to arbitration.
Legal Topics
['referral to Arbitration' 'arbitration Agreement' 'inoperative Arbitration Agreement' 'appointment of Arbitrator' 'non Existent Appointing Authority']
['commercial Arbitration' 'construction Law' 'contract Law' 'civil Procedure'] ['referral to Arbitration' 'arbitration Agreement' 'inoperative Arbitration Agreement' 'appointment of Arbitrator' 'non Existent Appointing Authority']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Application Under S 8(1) of the Commercial Arbitration Act 2010 (nsw) / Amended Notice of Motion by the First Defendant for Referral of the Plaintiff and First Defendant to Arbitration

Legal Issues

  1. 1 ['What is meant by the term inoperative in s 8(1) of the Commercial Arbitration Act 2010 (NSW).' 'Whether the non-existence of the person prescribed in the contract to nominate an arbitrator rendered the arbitration agreement between the Council and Urban inoperative.']

Ratio Decidendi

The arbitration agreement was operative. Clause 42.2 was the arbitration agreement and cl 42.3 was a machinery provision for appointment of an arbitrator. The non-existence of the President of the Australasian Dispute Centre affected only the nominated appointment mechanism, not the agreement to arbitrate. The Commercial Arbitration Act 2010 (NSW), particularly s 11, could fill the gap if the parties had not agreed on an effective appointment procedure or if the agreed procedure failed. Therefore s 8(1) required referral of the Council and Urban to arbitration.

Court Disposition

Pursuant to s 8(1) of the Commercial Arbitration Act 2010 (NSW), the plaintiff and first defendant were referred to arbitration.

Orders

  • ['Pursuant to s 8(1) of the Commercial Arbitration Act 2010 (NSW), the Court refers the plaintiff and the first defendant to arbitration.' 'The matter was stood over to enable the Court to deal with any remaining issues, including the appointment of an arbitrator and costs.']