AITKEN AND ANOR V ISHIMARU LIMITED HC AK CIV 2006-404-007953

AITKEN AND ANOR V ISHIMARU LIMITED HC AK CIV 2006-404-007953

Clause 11 of the 2003 agreement, when read as a whole, constitutes a binding arbitration agreement requiring mediation as the first mandatory step and, if mediation fails, arbitration; clause 17 of the 2001 agreement is also an arbitration agreement; a dispute exists; accordingly the proceedings must be stayed pending mediation and any subsequent arbitration.

Citation
openlaw-91fc4831_48c0_489b_a5ad_f247d86426c7.pdf
Parties
First Plaintiff/respondent: Jules Aitken; Second Plaintiff/respondent: Good Look Co Limited; Defendant/applicant: Ishimaru Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 October 2007
Procedural Posture
Civil — Contract / Commissions Dispute / Application for Review of Associate Judge's Refusal to Stay (interlocutory)
Outcome
Application for review allowed; Associate Judge's decision set aside; proceedings stayed pending mediation and, if mediation fails, arbitration; costs award set aside and no order for costs
Legal Topics
Arbitration Clause Construction, Mediation Precondition, Stay of Proceedings, Pleading Burdens, Costs
Arbitration Civil Procedure Contract Law Alternative Dispute Resolution Arbitration Clause Construction Mediation Precondition Stay of Proceedings Pleading Burdens +1 more

Case Brief

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Parties

Jules Aitken

First Plaintiff/respondent

Good Look Co Limited

Second Plaintiff/respondent

Ishimaru Limited

Defendant/applicant

Procedural Posture

Civil — Contract / Commissions Dispute / Application for Review of Associate Judge's Refusal to Stay (interlocutory)

Legal Issues

  1. 1 Effect of the 2001 agreement
  2. 2 Whether clause 11.1 of the 2003 agreement constitutes an agreement to arbitrate
  3. 3 Whether there is a justiciable dispute

Ratio Decidendi

Clause 11 of the 2003 agreement, when read as a whole, constitutes a binding arbitration agreement requiring mediation as the first mandatory step and, if mediation fails, arbitration; clause 17 of the 2001 agreement is also an arbitration agreement; a dispute exists; accordingly the proceedings must be stayed pending mediation and any subsequent arbitration.

Court Disposition

Application for review allowed; Associate Judge's decision set aside; proceedings stayed pending mediation and, if mediation fails, arbitration; costs award set aside and no order for costs

Orders

  • Proceedings stayed until parties have attended mediation in accordance with clause 11 of the 2003 agreement
  • If mediation fails, any arbitration to proceed in accordance with clause 11 of the 2003 agreement and/or clause 17 of the 2001 agreement