Construcciones y Auxiliar de Ferrocarriles S.A. v CPB Contractors Pty Limited [2022] NSWSC 1264

Supreme Court New South Wales

Medium Neutral Citation: Construcciones y Auxiliar de Ferrocarriles S.A. v CPB Contractors Pty Limited [2022] NSWSC 1264 Hearing dates: 14 September 2022 Decision date: 23 September 2022 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Pursuant to s 7(2) of the International Arbitration Act 1974 (Cth) these proceedings be stayed pending the referral of the subject-matter of these proceedings to arbitration or until further order. (2) It is a condition of order (1) that the defendant not raise as a defence in any such arbitration that the arbitral tribunal does not have jurisdiction to deal with the dispute because a precondition requiring that the dispute be referred first to expert determination has not been satisfied. (3) If the parties can agree on the question of costs of these proceedings and the defendant's notice of motion dated 28 July 2022, the parties provide to my Associate within 14 days of the date of this judgment short minutes of order giving effect to that agreement. (4) If the parties cannot agree on costs: (a) the defendant serve and provide to my Associate within 28 days of the date of this judgment proposed short minutes of order setting out the orders they seek and written submissions not exceeding five pages in support of those orders; (b) the plaintiff serve and provide to my Associate within a further seven days of the date of this judgment proposed short minutes of order setting out the orders they seek in relation to costs and written submissions not exceeding five pages in support of those orders; (c) the question of costs be decided on the papers. Catchwords: COMMERCIAL ARBITRATION — Arbitration agreement — Stay of proceedings — Whether this proceeding is a distinct dispute from a dispute that was the subject of a prior adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Tiered dispute resolution agreement — Whether the arbitration agreement is inoperative or incapable of being performed because the defendant did not comply with a condition precedent requiring it to procure the President of ACICA to appoint an expert to determine the dispute Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 UNTS 3 International Arbitration Act 1974 (Cth) UNCITRAL Model Law on International Commercial Arbitration Cases Cited: C v D [2022] 3 HKLRD 116; HKCA 729 Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 CPB Contractors Pty Ltd v DEAL SRL [2021] NSWSC 820 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; [1996] NSWSC 104 Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82 James Adam Pty Ltd v Fobeza Pty Ltd (2020) 103 NSWLR 850; [2020] NSWCA 311 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 Rinehart v Welker (2012) 95 NSWLR 221; [2012] NSWCA 95 Siam Steel International plc v Compass Group (Australia) Pty Ltd (2014) 293 FLR 260; [2014] WASC 415 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5 WCX M4-M5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd (No 2) [2022] NSWSC 505 Category: Procedural rulings Parties: Construcciones y Auxiliar de Ferrocarriles S.A. (Plaintiff | Respondent) CPB Contractors Pty Limited (Defendant | Applicant) Representation: Counsel: JC Giles SC with W Marshall (Plaintiff | Respondent) RA Dick SC with B Yin (Defendant | Applicant)