ARCHERS ROAD TRUST COMPANY LTD v JMR BUSINESS LTD [2016] NZHC 2987

ARCHERS ROAD TRUST COMPANY LTD v JMR BUSINESS LTD [2016] NZHC 2987

The stay was dismissed because the defendants' interlocutory steps fell within the clause 12.2 exception for urgent interlocutory relief and did not constitute waiver or submission to the Court; the third plaintiff's claims likely fall outside the expert determination clause as drafted (clause directed to Vendor and Purchaser disputes and expert determination is intended for technical subject-matter connection); and the pleaded claims involve mixed questions of fact and law requiring witnesses, cross-examination and judicial oversight and are therefore not appropriately determined by an expert whose determinations are final and lack appeal, so the balance of factors disfavors a stay.

Citation
[2016] NZHC 2987
Parties
First Plaintiff: Archers Road Trust Company Limited; Second Plaintiff: Malcolm Hayward Udy; Third Plaintiff: Mt Wellington Marine Limited; First Defendant: JMR Business Limited; Second Defendant: James Nicholas Robinson; Third Defendant: Melissa Robinson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 December 2016
Procedural Posture
Civil (contract, Negligence, Directors' Duties) / Interlocutory Application for Stay and Referral to Expert Determination
Outcome
Application for stay of proceeding dismissed
Legal Topics
Expert Determination Clause, Stay of Proceedings, Waiver/submission to Jurisdiction, Interim Freezing and Charging Orders, Directors' Duties, Warranty and Indemnity, Amenability to Expert Determination
Contract Law Alternative Dispute Resolution Civil Procedure Tort (negligence) Company Law Expert Determination Clause Stay of Proceedings Waiver/submission to Jurisdiction +4 more

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Parties

Archers Road Trust Company Limited

First Plaintiff

Malcolm Hayward Udy

Second Plaintiff

Mt Wellington Marine Limited

Third Plaintiff

JMR Business Limited

First Defendant

James Nicholas Robinson

Second Defendant

Melissa Robinson

Third Defendant

Procedural Posture

Civil (contract, Negligence, Directors' Duties) / Interlocutory Application for Stay and Referral to Expert Determination

Legal Issues

  1. 1 Whether to stay the High Court proceeding and refer disputes to expert determination under clause 12 of the Agreement
  2. 2 Whether the defendants submitted to the Court's jurisdiction or waived the right to require expert determination by taking interlocutory steps
  3. 3 Whether the third plaintiff's claims fall within the scope of the expert determination clause

Ratio Decidendi

The stay was dismissed because the defendants' interlocutory steps fell within the clause 12.2 exception for urgent interlocutory relief and did not constitute waiver or submission to the Court; the third plaintiff's claims likely fall outside the expert determination clause as drafted (clause directed to Vendor and Purchaser disputes and expert determination is intended for technical subject-matter connection); and the pleaded claims involve mixed questions of fact and law requiring witnesses, cross-examination and judicial oversight and are therefore not appropriately determined by an expert whose determinations are final and lack appeal, so the balance of factors disfavors a stay.

Court Disposition

Application for stay of proceeding dismissed

Orders

  • Application for stay dismissed
  • If parties cannot agree costs, memoranda in support may be filed within 10 working days, with memoranda in response filed five working days thereafter