Vodafone Pty Ltd v Supercall Pty Ltd & Anor [2003] NSWSC 302

Vodafone Pty Ltd v Supercall Pty Ltd & Anor [2003] NSWSC 302

The Arbitrator did not err in law in his construction of 'working capital immediately available' as used in the Asset Sale Agreement, nor was there any manifest error of law on the face of the Award. The Arbitrator was entitled to construe the term in context and to consider funds that could be made available at very short notice from associated companies under the relevant party's control. The plaintiff satisfied s 38(5)(a) (potential to substantially affect rights), but did not satisfy s 38(5)(b)(i) (manifest error of law), and in any event, the Court would exercise its discretion to refuse leave to appeal.

Parties
Plaintiff: Vodafone Pty Ltd; First Defendant: Supercall Pty Ltd; Second Defendant: Advanced Communications Pty Ltd
Jurisdiction
Australia
Judgment Date
21 May 2003
Procedural Posture
Application for Leave to Appeal Arbitral Award / Judgment on Application for Leave to Appeal
Outcome
Leave to appeal refused
Legal Topics
Leave to Appeal Arbitration Awards, Manifest Error of Law, Judicial Discretion, Construction of Contractual Terms
Arbitration Commercial Law Procedure Leave to Appeal Arbitration Awards Manifest Error of Law Judicial Discretion Construction of Contractual Terms

Case Brief

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Parties

Vodafone Pty Ltd

Plaintiff

Supercall Pty Ltd

First Defendant

Advanced Communications Pty Ltd

Second Defendant

Procedural Posture

Application for Leave to Appeal Arbitral Award / Judgment on Application for Leave to Appeal

Legal Issues

  1. 1 Whether leave to appeal Arbitrator's Award should be granted under s 38(4)(b) of Commercial Arbitration Act 1984 (NSW)
  2. 2 Whether Arbitrator failed to properly construe terms of Award, specifically the meaning of 'working capital immediately available' in cl 10.3(a)(ii) of the Asset Sale Agreement
  3. 3 Whether Arbitrator failed to take into account liabilities of Supercall in assessing working capital

Ratio Decidendi

The Arbitrator did not err in law in his construction of 'working capital immediately available' as used in the Asset Sale Agreement, nor was there any manifest error of law on the face of the Award. The Arbitrator was entitled to construe the term in context and to consider funds that could be made available at very short notice from associated companies under the relevant party's control. The plaintiff satisfied s 38(5)(a) (potential to substantially affect rights), but did not satisfy s 38(5)(b)(i) (manifest error of law), and in any event, the Court would exercise its discretion to refuse leave to appeal.

Court Disposition

Leave to appeal refused

Orders

  • Summons dismissed
  • Opportunity for parties to address on costs; arrangements to be made for relisting