Auburn Council v Austin Australia Pty Limited (in liquidation) [2007] NSWSC 130

New South Wales Supreme Court

CITATION : Auburn Council v Austin Australia Pty Limited (in liquidation) [2007] NSWSC 130

HEARING DATE(S) : 12/02/07, 13/02/07, 14/02/07, 15/02/07, 16/02/07, 19/2/07, 20/02/07, 21/02/07 22/02/07

JUDGMENT DATE : 6 March 2007

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Plaintiff's claims to relief not made out. Parties to bring in short minutes of order.

CATCHWORDS : Arbitration - Contract - Arbitration proceedings concerning contractual arrangement close to completion - Claimant placed into administration - Arbitration proceedings include cross claim by respondent - Court order for the provision of security for the respondent's future costs and staying claimants claim until provision of security - No order staying respondents cross-claim - Security for costs furnished extended period after order made - Respondent seeks declaration that the arbitration agreement ended as a result of claimant's repudiation and respondents acceptance of such repudiation or orders pursuant to s 46 of the Commercial Arbitration Act 1984 (NSW) terminating the arbitration - Whether repudiation made out - Whether delay on part of claimant in complying with court's order for security capable of constituting a breach of term implied in s 46 (1) of the Commercial Arbitration Act to exercise due diligence in taking of steps necessary to have dispute referred to and dealt with in arbitration proceedings - Implied obligation to progress arbitration being mutual - Whether delay would give rise to substantial risk of it not being possible for fair trial of the issues in arbitration proceedings or likely to cause serious prejudice to respondent - No effective termination of arbitration agreement possible by reason of one party's repudiatory delay where other party failed to take steps to have such delay addressed - Party not ready, willing and able to perform contract may not terminate contract notwithstanding the repudiatory conduct of other party - Whether respondent lost right to accept any repudiation of arbitration agreement by accepting security for funds moneys - Whether statements by the applicant concerning its beliefs as to when funding would be obtained for the provision of the security comprised repudiatory conduct or lack of due diligence on part of applicant in the taking of steps necessary to have the dispute dealt with in the arbitration proceedings - Leave to proceed against company in liquidation