Joel Passlow v Butmac Pty Ltd [2012] NSWSC 225

Supreme Court New South Wales

Medium Neutral Citation: Joel Passlow v Butmac Pty Ltd [2012] NSWSC 225 Hearing dates: 14 March 2012 Decision date: 16 March 2012 Jurisdiction: Common Law Before: Adamson J Decision: Cross-defendant's amended notice of motion for stay filed on 14 March 2012: (1) Stay the cross-claim in so far as it relates to the claim by the first cross-claimant. (2) Refer the first cross-claimant and the cross-defendant to arbitration in respect of the cross-claim. (3) Permit the cross-claim to proceed against the cross-defendant, only in so far as it is brought by the second cross-claimant. (4) Vacate the direction made on 23 September 2011 requiring the cross-defendant to file its defence to the cross-claim by 7 November 2011. (5) Order the first cross-claimant to pay the cross-defendant's costs of the motion. Cross-defendant's notice of motion to set aside the notice to produce filed on 6 February 2012: (1) Order the cross-claimants to pay the cross-defendant's costs of the motion. Cross-claimants' notice of motion for discovery by categories filed on 13 February 2012: (1) Order the cross-defendant, pursuant to UCPR 21.2(1), to provide discovery of the categories of documents outlined in paragraph 78 of this judgment. (2) Order the cross-defendant to pay the cross-claimants' costs of the motion. Catchwords: CONTRACT - construction - whether terms of contract are uncertain PRACTICE AND PROCEDURE - arbitration clause -whether arbitration clause covers a claim for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 PRIVATE INTERNATIONAL LAW - international arbitration - agreement to refer matter to international arbitration - mandatory stay PRACTICE AND PROCEDURE - discovery - whether categories of document sought through discovery are oppressive in the instant case Legislation Cited: International Arbitration Act 1974 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; 153 FLR 236 Austra Tanks Pty Ltd v Running [1982] 2 NSWLR 840 Comandate Marine v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45 Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 Global Partners Fund Ltd v Babcock and Brown Ltd [2010] NSWCA 196 Gollin Holdings Limited v Adcock [1981] 1 NSWLR 691 Government Insurance Office of New South Wales v Atkinson-Leighton Joint Venture (1981) 146 CLR 206 Incitec Limited v Alkimos Shipping Corporation [2004] FCA 698; 138 FCR 496 Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589 United Group Rail Services Limited v Rail Corp New South Wales [2009] NSWCA 177; 74 NSWLR 618 Texts Cited: Rana and Sanson, International Commercial Arbitration (2011) Category: Interlocutory applications Parties: Joel Passlow (Plaintiff) Butmac Pty Ltd (First Defendant/ First Cross-Claimant) Automotive Holding Group (Second Defendant/ Second Cross-Claimant) The Stable (Wagga) Pty Ltd (Third Defendant) KTM-Sportmotorcycle AG (Cross-Defendant) Representation: Counsel: S Blount (Plaintiff) DS Weinberger (First and Second Defendants/ Cross-Claimants) SA Goodman (Cross-Defendant) Solicitors: Commins Hendricks (Plaintiff) McCabe Terrill Lawyers (First and Second Defendants/ Cross-Claimants) Clinch Long Letherbarrow (Cross-Defendant) File Number(s): 2010/00285226