WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd [2008] NSWSC 894

WesTrac Pty Ltd v Eastcoast OTR Tyres Pty Ltd [2008] NSWSC 894

Fordberry was domiciled in the United Kingdom, a Convention country, and Eastcoast and Fordberry had entered an arbitration agreement in writing through the pro forma invoice and Eastcoast's written acceptance. Clause 5, requiring ICC arbitration of all disputes arising out of or in connection with the contract, comprehended all of Eastcoast's cross-claim, including breach of contract, implied term, pre-contract representation and Trade Practices Act claims. Because the conditions in s 7(2) of the International Arbitration Act 1974 (Cth) were satisfied, the court was bound to stay Eastcoast's cross-claim against Fordberry and refer those parties to arbitration. The court could not use s...

Jurisdiction
Australia
Judgment Date
29 August 2008
Procedural Posture
Notices of Motion in Proceedings Involving Claims for Damages for Breach of Contract and Under the Trade Practices Act 1974 (cth), Including Applications for Stay and Referral to Arbitration / Principal Judgment on Fordberry's Notice of Motion Under S 7 of the International Arbitration Act 1974 (cth) and Eastcoast's Notice of Motion Under S 38 of the Civil Procedure Act 2005
Outcome
Eastcoast's cross-claim against Fordberry to be stayed and referred to arbitration under s 7(2) of the International Arbitration Act 1974 (Cth); Eastcoast's application for referral to arbitration under s 38 of the Civil Procedure Act 2005 to be dismissed; matter stood over for further submissions on the form of...
Legal Topics
['stay of Proceedings' 'foreign Arbitration Agreements' 'referral to Arbitration' 'arbitration Agreement in Writing' 'scope of Arbitration Clause' 'misleading or Deceptive Conduct' 'sale of Goods']
['arbitration' 'civil Procedure' 'contract' 'trade Practices'] ['stay of Proceedings' 'foreign Arbitration Agreements' 'referral to Arbitration' 'arbitration Agreement in Writing' 'scope of Arbitration Clause' 'misleading or Deceptive Conduct' 'sale of Goods']

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Procedural Posture

Notices of Motion in Proceedings Involving Claims for Damages for Breach of Contract and Under the Trade Practices Act 1974 (cth), Including Applications for Stay and Referral to Arbitration / Principal Judgment on Fordberry's Notice of Motion Under S 7 of the International Arbitration Act 1974 (cth) and Eastcoast's Notice of Motion Under S 38 of the Civil Procedure Act 2005

Legal Issues

  1. 1 ["Whether Eastcoast's cross-claim against Fordberry must be stayed and referred to arbitration under s 7(2) of the International Arbitration Act 1974 (Cth)." 'Whether Eastcoast and Fordberry were parties to an arbitration agreement within the meaning of the International Arbitration Act 1974 (Cth).' "Whether all matters in Eastcoast's cross-claim, including claims based on alleged pre-contractual representations and Trade Practices Act claims, were capable of settlement by arbitration under clause 5 of the General Conditions of Acceptance." 'Whether conditions should be imposed on a stay and referral order under s 7(2) of the International Arbitration Act 1974 (Cth).' "Whether the whole of the proceedings, including WesTrac's claims against Eastcoast, should be referred to arbitration under s 38 of the Civil Procedure Act 2005."]

Ratio Decidendi

Fordberry was domiciled in the United Kingdom, a Convention country, and Eastcoast and Fordberry had entered an arbitration agreement in writing through the pro forma invoice and Eastcoast's written acceptance. Clause 5, requiring ICC arbitration of all disputes arising out of or in connection with the contract, comprehended all of Eastcoast's cross-claim, including breach of contract, implied term, pre-contract representation and Trade Practices Act claims. Because the conditions in s 7(2) of the International Arbitration Act 1974 (Cth) were satisfied, the court was bound to stay Eastcoast's cross-claim against Fordberry and refer those parties to arbitration. The court could not use s...

Court Disposition

Eastcoast's cross-claim against Fordberry to be stayed and referred to arbitration under s 7(2) of the International Arbitration Act 1974 (Cth); Eastcoast's application for referral to arbitration under s 38 of the Civil Procedure Act 2005 to be dismissed; matter stood over for further submissions on the form of...

Orders

  • ["Eastcoast's cross-claim against Fordberry is to be stayed pursuant to s 7(2) of the International Arbitration Act 1974 (Cth)." "Eastcoast and Fordberry are to be referred to arbitration in respect of Eastcoast's cross-claim against Fordberry." "Eastcoast's application under s 38 of the Civil Procedure Act 2005 is...