Warner Bros Feature Productions Pty Ltd v Kennedy Miller Mitchell Films Pty Ltd [2018] NSWCA 81

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Warner Bros Feature Productions Pty Ltd v Kennedy Miller Mitchell Films Pty Ltd [2018] NSWCA 81 Hearing dates: 14 February 2018 Date of orders: 24 April 2018 Decision date: 24 April 2018 Before: Bathurst CJ at [1]; Beazley P at [93]; Emmett AJA at [94] Decision: (1) Grant the applicants leave to appeal.

(2) Allow the appeal.

(3) Set aside the orders made by the primary judge.

(4) Direct the parties to make submissions within 7 days as to the appropriate orders to give effect to this judgment.

(5) Order the respondents to pay the applicants' costs of the appeal and the costs of the motion for a stay in the Court below. Catchwords: CONTRACTS – Express terms – Incorporation of terms – Incorporation by reference – agreement stated that balance of terms would be "WB standard for 'A' list directors and producers" subject to "good faith negotiations" – whether terms were incorporated before good faith negotiations had taken place – whether terms which were "standard" had been proved to exist

COMMERCIAL ARBITRATION – Arbitration agreement – Form of arbitration agreement – Arbitration clause - agreement stated that balance of terms would be "WB standard for 'A' list directors and producers" – whether an arbitration clause was "WB standard for 'A' list directors and producers" Legislation Cited: Commercial Arbitration Act 2010 (NSW) International Arbitration Act 1974 (Cth) Cases Cited: Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Lief Investments Pty Ltd v Conagra International Fertiliser Co (Court of Appeal (NSW), 16 July 1998, unrep) Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Segelov v Ernst & Young Services Pty Ltd (2015) 89 NSWLR 431; [2015] NSWCA 156 Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310; [1929] HCA 34 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Category: Principal judgment Parties: Warners Bros Feature Productions Pty Ltd (first applicant) Warner Bros Entertainment Inc (second applicant) Kennedy Miller Mitchell Films Pty Ltd (first respondent) Kennedy Miller Mitchell Services Pty Ltd (second respondent) Representation: Counsel: A Bell SC with S Free and M Baroni (applicants) C Withers with A Hochroth (respondents)