Gilgandra Marketing Co-Operative Limited v Australian Commodities & Marketing Pty Ltd & Anor [2010] NSWSC 1209

Gilgandra Marketing Co-Operative Limited v Australian Commodities & Marketing Pty Ltd & Anor [2010] NSWSC 1209

The Commercial Arbitration Act 2010 governed the stay application, but Australian Commodity was not entitled to referral to arbitration or a stay because its opposition to Gilgandra Marketing's interlocutory application on 22 July 2010, and its subsequent participation in preparing the proceedings for hearing, amounted to or adopted its first statement on the substance of the dispute before its 23 September 2010 request for arbitration.

Jurisdiction
Australia
Judgment Date
22 October 2010
Procedural Posture
Civil Proceedings for Breach of Contract and Declarations, With Interlocutory Relief, Involving an Application for Stay Pending Arbitration / First Defendant's Notice of Motion Seeking Stay of Proceedings Pending Arbitration
Outcome
Application for referral to arbitration declined and application for stay dismissed; hearing confirmed for 1 November 2010.
Legal Topics
['stay of Proceedings' 'arbitration Agreement' 'commercial Arbitration Act 2010' 'first Statement on the Substance of the Dispute' 'interlocutory Injunction' "unpaid Seller's Right of Stoppage in Transitu"]
['arbitration' 'civil Procedure' 'contract Law' 'sale of Goods'] ['stay of Proceedings' 'arbitration Agreement' 'commercial Arbitration Act 2010' 'first Statement on the Substance of the Dispute' 'interlocutory Injunction' "unpaid Seller's Right of Stoppage in Transitu"]

Case Brief

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Procedural Posture

Civil Proceedings for Breach of Contract and Declarations, With Interlocutory Relief, Involving an Application for Stay Pending Arbitration / First Defendant's Notice of Motion Seeking Stay of Proceedings Pending Arbitration

Legal Issues

  1. 1 ["Whether the Commercial Arbitration Act 2010 or the Commercial Arbitration Act 1984 governed the first defendant's application for a stay pending arbitration." 'Whether the first defendant requested referral to arbitration not later than when submitting its first statement on the substance of the dispute within s 8 of the Commercial Arbitration Act 2010.' 'Whether the proceedings should be stayed and the parties referred to arbitration.']

Ratio Decidendi

The Commercial Arbitration Act 2010 governed the stay application, but Australian Commodity was not entitled to referral to arbitration or a stay because its opposition to Gilgandra Marketing's interlocutory application on 22 July 2010, and its subsequent participation in preparing the proceedings for hearing, amounted to or adopted its first statement on the substance of the dispute before its 23 September 2010 request for arbitration.

Court Disposition

Application for referral to arbitration declined and application for stay dismissed; hearing confirmed for 1 November 2010.

Orders

  • ["Australian Commodity's application for referral to arbitration under the Commercial Arbitration Act 2010 is declined." 'The application for a stay is dismissed.' 'The hearing of the proceedings on Monday, 1 November 2010 before Slattery J is confirmed.']