Sapphire (SA) Pty Ltd (trading as River City Grain) -v- Barry Smith Grains Pty Ltd (In Liquidation) [2012] NSWSC 771

Supreme Court New South Wales

Medium Neutral Citation: Sapphire (SA) Pty Ltd (trading as River City Grain) -v- Barry Smith Grains Pty Ltd (In Liquidation) [2012] NSWSC 771 Hearing dates: 19 June 2012 Decision date: 10 July 2012 Jurisdiction: Equity Division - Commercial Arbitration List Before: Hammerschlag J Decision: See paragraphs 61, 68 and 69 Catchwords: COMMERCIAL ARBITRATION - appeal against arbitral award pursuant to ss 38(2) and 38(4) of the Commercial Arbitration Act 1984 (NSW) - CONTRACT - contracts for the sale and purchase of grain incorporating the National Agricultural Commodities Marketing Association Ltd Trade Rules (NACMA Rules) - construction of the NACMA Rules - provision for contract to be closed out on occurrence of an Insolvency Event of which the defaulting party must give immediate notice - provisions for determination of the Fair Market Price in the event that notice is given and also where notice is not given as required - where Insolvency Event occurs but no notice is given and then another Insolvency Event occurs of which notice is given - how the NACMA Rules operate in these circumstances Legislation Cited: Commercial Arbitration Act 1984 (NSW) Cases Cited: Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (In Liq) [2011] NSWSC 1451 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 Western Export Services Inc v Jireh International Pty Ltd [2010] NSWSC 622 Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137 Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1 Alghussein Establishment v Eton College [1991] 1 All ER 267 Brothers v Park [2004] ANZ Conv R 451 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Category: Principal judgment Parties: Sapphire (SA) Pty Ltd ACN 076 858 029 (trading as River City Grain) - Plaintiff Barry Smith Grains Pty Ltd (In Liquidation) ACN 003 151 166 - First Defendant David John Kerr and Peter William Marsden (in their capacities as joint and several liquidators of the first defendant and as receivers and managers of the property of the Barry Smith Family Trust and Barry Smith Family Trust No.2) Representation: Counsel: J.A. Watson with F.T. Roughley - Plaintiff M.T. McCulloch SC - Defendants Solicitors: Eastern Bridge - Plaintiff Henry Davis York - Defendants File Number(s): 2011/149286