BULK CHARTERING AND CONSULTANTS AUSTRALIA PTY LTD v T AND T METAL TRADING PTY LTD [1992] NSWCA 33

BULK CHARTERING AND CONSULTANTS AUSTRALIA PTY LTD v T AND T METAL TRADING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 16 October 1992 [1992] NSWCA 33

Handley JA This matter was before me last on 21 September when I was sitting asa single judge in the motion list. On my then understanding of the proceedings before the Honourable David Yeldham QC, as arbitrator, Bryson J as a judge of the Equity Division and the proceedings pending in the Federal Court, I thought the convenient course was to allow the respondent's application to strike out the Federal Court proceedings on grounds based on Port of Melbourne Authority v Anshun No 2 to be heard first. I also thought that there was no utility in this Court expediting the appeal until the Federal Court had disposed of the strike out application.

This morning, Mr Rayment QC and Mr Sexton have appeared for the appellant and I have been more fully informed of the proceedings before the arbitrator, and before Bryson J and the pending Federal Court proceedings. I am now informed that the appellant challenges the validity of the agreement to refer disputes under the charterparty to the Honourable David Yeldham QC on the ground that it is contrary to s9 of the Sea Carriage of Goods Act 1924 (Commonwealth).

The point taken is that the section which clearly invalidates agreements to refer future disputes to arbitration also invalidates ad hoc agreements to refer disputes which have actually arisen. Apparently this view has been taken by the English Court of Appeal in a recent decision. Bryson J declined to follow this decision and held that the ad hoc agreement to refer the dispute to the Honourable David Yeldham QC was valid under Commonwealth law. On that basis he upheld the petitioning creditor's debt and made the winding-up order which is under appeal.