Lepcanfin Pty Ltd v Lepfin Pty Ltd [2019] NSWSC 1328

Supreme Court New South Wales

Medium Neutral Citation: Lepcanfin Pty Ltd v Lepfin Pty Ltd [2019] NSWSC 1328 Hearing dates: 13 August 2019 Date of orders: 11 September 2019 Decision date: 10 September 2019 Jurisdiction: Equity - Commercial List Before: Rein J Decision: 1. Paragraph 1 of the Summons is dismissed and the proceedings are otherwise permanently stayed. 2. The Plaintiff to pay the Applicants' costs of the Notice of Motion, as agreed or assessed. 3. The Plaintiff to pay the Defendants' costs of the proceedings, as agreed or assessed. Catchwords: CIVIL PROCEDURE – Summary disposal – Where the applicants sought, by notice of motion, to dismiss, strike out or permanently stay the plaintiff's claim on the basis that the plaintiff was contractually bound to adhere to a dispute resolution regime under which disputes between the parties are to be referred to expert determination rather than litigated in Court – Whether the Court should exercise its discretion to stay the proceedings.

EXPERT DETERMINATION – Construction of the expert determination agreement by which the expert was appointed, having regard to the circumstances known at the time of execution of the agreement –Where the plaintiff challenged the expert's mandate to determine an issue because, the plaintiff contended, it was not part of what was referred to the expert – Where the parties were found to have agreed to delineate the dispute to be referred to the expert by points of claim and points of defence.

CONTRACTS – Construction and interpretation – meaning and scope of the phrase "arises out of this agreement" – Where the dispute resolution regime in a deed applies to disputes that arise "out of this agreement" – Whether disputes concerning associated guarantees and a mortgage can be said to arise out of the deed and are, therefore, to be referred to expert determination. Legislation Cited: Nil Cases Cited: Australian Vintage Pty Ltd v Belvino Investments No 2 Pty Ltd [2015] NSWCA 275; (2015) 90 NSWLR 367 Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Dance with Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 Ex parte Young; In re Kitchin (1881) 17 Ch D 668 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 93 ALJR 582 Rinehart v Welker [2012] NSWCA 95; (2012) 95 NSWLR 221 Samick Lines Co Ltd v Owners of the "Antonis P Lemos" [1985] AC 711 Sweetpea Petroleum Pty Ltd v Paltar Petroleum Ltd [2018] NSWSC 1649 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 Texts Cited: Nil Category: Procedural and other rulings Parties: Lepcanfin Pty Ltd (Plaintiff/Respondent) Lepfin Pty Ltd (First Defendant/Sixth Applicant) Lepcon Pty Ltd (Second Defendant/Fourth Applicant) Antegra Pty Ltd (Third Defendant/Second Applicant) Domenico Capitani (Fourth Defendant) Josephine Capitani (Fifth Defendant) Antegra Management Leppington Pty Ltd (Sixth Defendant/First Applicant) Lepdev Pty Ltd (Seventh Defendant/Fifth Applicant) Berlyn Holdings Pty Ltd (Eighth Defendant/Third Applicant) Representation: Counsel: Ms V. Whittaker SC with Ms K. Petch (Plaintiff/Respondent) Mr W. Muddle SC with Mr R. Davies (First to Third and Sixth to Eighth Defendants/Applicants)