Tridon Australia Pty Ltd & Anor v ACD Tridon Inc (Incorporated in Ontario) [2004] NSWCA 146

New South Wales Court of Appeal

CITATION : Tridon Australia Pty Ltd & Anor v ACD Tridon Inc (Incorporated in Ontario) [2004] NSWCA 146 HEARING DATE(S) : 4 May 2004 JUDGMENT DATE : 4 May 2004

JUDGMENT OF : Handley JA at 15; Giles JA at 1; Santow J at 16 DECISION : Leave to appeal refused. Claimants to pay the opponent's costs.

CATCHWORDS : Arbitration - interim award in form of declarations - application for leave to enforce award - only by obtaining judgment in terms of award - no question of enforcement - have properly refused. ND LEGISLATION CITED : Commercial Arbitration Act 1984. s 33 Tridon Australia Pty Ltd - First Claimant PARTIES : Tridon New Zealand Ltd - Second Claimant ACD Tridon Inc - Opponent FILE NUMBER(S) : CA 40034/04 COUNSEL : M Jacobs QC & P Bambagiotti - Claimants S Finch SC - Opponent SOLICITORS : Cutler Hughes & Harris - Claimants Allens Arthur Robinson - Opponent

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 50100/03 FILE NUMBER(S) : LOWER COURT Smart AJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40034/04

HANDLEY JA GILES JA SANTOW JA

Tuesday 4 May 2004 TRIDON AUSTRALIA PTY LTD& ANOR v ACD TRIDON INC Judgment 1 GILES JA: This is an application for leave to appeal from a decision of Smart AJ given on 19 December 2003, in which his Honour refused to make an order under s 33 of the Commercial Arbitration Act 1984 ("the Act") giving leave to enforce an interim award (described by the learned arbitrator as a partial award) of the Honourable Andrew Rogers QC dated 30 June 2003. The application has been heard on full submissions, so that if leave were given the appeal could be determined without a further hearing. 2 The learned arbitrator was appointed to determine a complex series of disputes. In the manner described in the interim award, there were isolated five issues for separate decision. They were decided, and the arbitrator made an award in the form of declarations as to the result of the decision of those issues. In broad terms, they were declarations as to whether certain conduct was in breach of an agreement between the parties to the arbitration and whether a purported termination of the agreement was effective. 3 Applications were made to have the award set aside on the ground of technical misconduct and in the alternative for leave to appeal pursuant to s 38 of the Act. Smart AJ heard those applications and dismissed them. A counter-application was made for an order under s 33 of the Act and in subsequent reasons published after receiving written submissions from the parties his Honour declined to make that order. 4 Section 33 of the Act provides - "33 Enforcement of award