Leveraged Equities Pty Ltd v Huxley [2010] NSWCA 179

Leveraged Equities Pty Ltd v Huxley [2010] NSWCA 179

Clause 78 required arbitration under the laws of New South Wales and the phrase "first try to settle" did not express a contrary intention under s 28 of the Commercial Arbitration Act 1984 (NSW). The natural meaning of "settle" was to resolve, and the words "first try" were consistent with later enforcement or with possible failure of the arbitration process, not with a merely voluntary or non-binding arbitration. The arbitral awards were therefore final and binding and enforceable under s 33.

Jurisdiction
Australia
Judgment Date
19 July 2010
Procedural Posture
Application for Leave to Appeal and Appeals Concerning Construction of a Dispute Resolution Clause and Enforcement of Arbitral Awards / Court of Appeal From Judgments and Orders Made in the Supreme Court of New South Wales Equity Division on 21 September 2009
Outcome
Application for leave to appeal granted; appeals allowed; Equity Division judgments and orders set aside; arbitral awards ordered enforceable and judgments entered for the appellant; summons 4032/2008 dismissed.
Legal Topics
['construction of Dispute Resolution Clause' 'enforcement of Arbitral Award' 'final and Binding Arbitral Awards' 'margin Loan Agreement']
['contract' 'arbitration' 'civil Procedure'] ['construction of Dispute Resolution Clause' 'enforcement of Arbitral Award' 'final and Binding Arbitral Awards' 'margin Loan Agreement']

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Procedural Posture

Application for Leave to Appeal and Appeals Concerning Construction of a Dispute Resolution Clause and Enforcement of Arbitral Awards / Court of Appeal From Judgments and Orders Made in the Supreme Court of New South Wales Equity Division on 21 September 2009

Legal Issues

  1. 1 ['Whether clause 78 of the margin loan agreement, particularly the words "first try to settle", expressed a contrary intention for the purposes of s 28 of the Commercial Arbitration Act 1984 (NSW) so that arbitral awards would not be final and binding.' 'Whether Leveraged Equities Pty Ltd should have leave under s 33 of the Commercial Arbitration Act 1984 (NSW) to enforce the arbitral awards as judgments or orders of the Court.']

Ratio Decidendi

Clause 78 required arbitration under the laws of New South Wales and the phrase "first try to settle" did not express a contrary intention under s 28 of the Commercial Arbitration Act 1984 (NSW). The natural meaning of "settle" was to resolve, and the words "first try" were consistent with later enforcement or with possible failure of the arbitration process, not with a merely voluntary or non-binding arbitration. The arbitral awards were therefore final and binding and enforceable under s 33.

Court Disposition

Application for leave to appeal granted; appeals allowed; Equity Division judgments and orders set aside; arbitral awards ordered enforceable and judgments entered for the appellant; summons 4032/2008 dismissed.

Orders

  • ['In 2008/281448, application for leave to appeal granted.' 'The notice of appeal to be filed within 14 days.' 'In 2008/281448, appeal allowed.' 'Judgment and orders made in the Equity Division on 21 September 2009 set aside.' 'The appellant has leave to enforce the arbitral awards made in its favour against each of...