Tanning Research Laboratories Inc v O'Brien [1990] HCA 8

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Tanning Research Laboratories Inc v O'Brien [1990] HCA 8

ORDER Appeal dismissed with costs. Application for special leave to cross-appeal refused with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1990, March 6 Brennan and Dawson JJ.

The respondent is the liquidator of Hawaiian Tropic Pty. Ltd. ("Hawaiian"). He rejected a proof of debt lodged by the appellant, Tanning Research Laboratories Inc. ("Tanning"), a Florida corporation. By summons issued out of the Supreme Court of New South Wales, Tanning sought an order that the liquidator's decision to reject Tanning's proof of debt be reversed. Cohen J. ordered that the liquidator's rejection be varied by allowing the proof in the sum of $55,502.63, but that order was set aside by the Court of Appeal which ordered that "the proceedings be stayed pursuant to s. 7(2) of the Arbitration (Foreign Awards and Agreements) Act 1974 Cth and the determination of the matter of the amount, if any, by which Hawaiian Tropic Pty. Ltd. (in liquidation) is indebted to [Tanning] be referred to arbitration in accordance with the agreement between the parties of 24 June 1975." The primary question for decision is whether the conditions governing the application of s. 7(2) of the Arbitration (Foreign Awards and Agreements) Act 1974 Cth ("the Act"), now called the International Arbitration Act, are satisfied. Section 7(2) read as follows:

Subject to this Act, where —

(a) proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and

(b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration,