ARBITRATION JUDGMENTS

2017

P v Q [2017] EWHC 194 (Comm) 9 February 2017 (High Court of Justice, QBD, Commercial Court)

arbitration – tribunal secretary – allegation of improper delegation – application to remove arbitrators

Application dismissed. This judgment provides a discussion on the practical use of tribunal secretaries.

2015

Leef v Bidois [2015] NZSC 128 24 August 2015 (NZ Supreme Court)

application for leave to appeal – conflict of interest – natural justice

Applicant accepted Court of Appeal’s finding that there was an arbitration agreement and appealed on the two procedural issues of conflict of interest and access to documents.

The Court was of the opinion that the issue of whether there can be waiver of the right to an independent and impartial tribunal is one of public or general importance, but as there was to objection taken at the time, this was not a suitable case to decide the question of principle.

Application dismissed.

BSC CONSTRUCTION LTD v WITHERS [2015] NZHC 1988 21 August 2015 (NZ High Court)

arbitration – application to set-aside – natural justice – Building Disputes Tribunal expedited rules

A party to an arbitration sought to set aside an arbitral award on the basis he had not had any opportunity to file evidence in reply.  The claim was brought under BDT’s expedited rules.  The Court held that there was nothing in the expedited rules to suggest that the parties contemplated any inequality of treatment and there was no breach of the rules of natural justice. The judgment provides confirmation that procedures in the rules provide a dispute resolution mechanism that is both proportionate to what is in issue, and effective in the end result.

Bidois v Leef [2015] NZCA 176 18 May 2015 (NZ Court of Appeal)

Appeal from decision to set aside award on basis the dispute was not one which could in law be the subject of an arbitration agreement – s2 Arbitration Act – meaning of defined legal relationship – natural justice – conflict of interest and fair hearing rights – arbitration or expert determination – Sch 1, art 4 Waiver of right to object

Court of Appeal held that there was a requisite defined legal relationship, stating that it was incorrect to suggest the issue being arbitrated must be ultimately determinative of the whole contest between the parties [50] and finding that the arbitration did have direct consequences on the entitlement to a share of the settlement funds proceeds [52]. Looking at the overall context, the Court was satisfied that the issue between the parites could properly be the subject of an arbitration agreement.

The Court also rejected the argument that one party could fail to object to the appointment of an arbitrator where it had full knowledge of the relevant conflict, but then be permitted to object at a later time (after the award was published). It also did not find there was a process breach in terms of the failure to provide a copy of documents relied on to the other side (those documents being otherwise made available). The Court concluded that what occurred flowed directly from the process that the parties agreed to [93].

Appeal allowed.

2014

WHITE v MAIDEN [2014] NZHC 3037 1 December 2014 (NZ High Court)

objection to arbitrator under Schedule 1 of the Arbitration Act – whether conflicts of interest give rise to bias – whether objective test breached – no question of credibility in arbitration – no reasonable person would think possibility of bias

DANONE ASIA PACIFIC HOLDINGS PTE LTD v NUTRICIA LIMITED [2014] NZCA 536 7 November 2014 (NZ Court of Appeal)

appeal against temporary stay – claim relating to manufacture and supply of allegedly defective milk product – arbitration in Singapore under supply agreement would resolve critical issues in HC proceeding – whether stay appropriate exercise of discretion – whether stay should be amended to require completion of interlocutory steps

TODD PETROLEUM MINING COMPANY LIMITED v SHELL (PETROLEUM MINING) COMPANY LIMITED [2014] NZCA 507 17 October 2014 (NZ Court of Appeal)

appeal on question of law – joint venture relationship between parties involving the Kapuni oil and gas field in Taranaki – dispute over delivery of gas through the Whareroa pipeline – interpretation of Schedule 1 art 33(3) and art 34(3) Arbitration Act 1996 – time within which a party to an arbitral award, who had sought an additional award on a matter not resolved by the original award under art 33(3), might seek recourse against that award under art 34(3)

ALL METALS TRADING COMPANY LIMITED v HADLEY JOHN WRIGHT [2014] NZHC 2136 5 September 2014 (NZ High Court)

application for summary judgment on guarantee for rent and outgoings over premises – effect of alternative dispute resolution clause and arbitration clause in ADLS standard form of lease – whether ADR right waived – arbitration clause will not usurp summary judgment process

DANONE ASIA PACIFIC HOLDINGS PTE LTD v FONTERRA CO-OPERATIVE GROUP LTD [2014] NZHC 1681 17 July 2014 (NZ High Court)

application for stay – claims relating to Fonterra supply of contaminated product for use in baby formula – arbitration commenced under supply agreement between main parties – jurisdiction to grant stay – whether stay appropriate in interests of justice

Bidois v Leef [2014] NZCA 271 25 June 2014 (NZ Court of Appeal)

s2 Arbitration Act 1996 – meaning of defined legal relationship – application for leave to adduce further evidence in support of appeal against decision of Andrews J finding that the mana whenua dispute was not a dispute “in respect of a defined legal relationship” and was therefore not an arbitration

Further evidence must be fresh, credible and cogent and will not be regarded as fresh if it could with reasonable diligence have been adduced at trial. Evidence that is not fresh will only be admitted in exceptional and compelling circumstances [15].

Application granted on the basis that, whilst the question of whether the process was in fact an arbitral tribunal process was raised during the hearing, the focus appeared to have been on a different aspect of that questions, namely whether the parties intended to submit to arbitration or an expert determination.

CARR v GALLAWAY COOK ALLAN [2014] NZSC 75 20 June 2014 (NZ Supreme Court)

agreement to arbitrate – right of appeal from arbitral award extended to questions of fact – whether agreement enforceable despite invalidity – whether offending words severable – whether setting aside arbitral award was correct exercise of discretion under art 34, Schedule 1, Arbitration Act

NICHOLS v THE ATTORNEY-GENERAL [2014] NZHC 1341 16 June 2014 (NZ High Court)

application for leave to appeal from partial award under s 162A(5) Biosecurity Act 1993 – breaches of HC Rules – leave denied

HOLDEN v FOODSTUFFS (WELLINGTON) CO-OPERATIVE SOCIETY LIMITED [2014] NZCA 245 16 June 2014 (NZ Court of Appeal)

application for special leave to appeal from reversal of arbitral award – lease of supermarket premises – interpretation – whether lessee liable for turnover rental following relocation – whether damages assessable on basis of turnover rent if premises remained open – requirements for special leave relating to arbitral awards

QUEENSTOWN MINI GOLF LIMITED v BRECON STREET PARTNERSHIP LIMITED [2014] NZHC 1101 22 May 2014 (NZ High Court)

application for interim injunction – section 16, Arbitration Act 1996 – arbitral jurisdiction

SHELL (PETROLEUM MINING) CO LTD v VECTOR GAS CONTRACTS LTD [2014] NZHC 1072 20 May 2014 (NZ High Court)

R T VINCENT LIMITED v WATTS & HUGHES CONSTRUCTION LIMITED [2014] NZHC 847 29 April 2014 (NZ High Court)

URSEM v CHUNG HC AK CIV-2013-404-3195 [2014] NZHC 436 12 March 2014 (NZ High Court)

application to stay proceedings and refer to arbitration – jurisdiction of arbitral tribunal

GREEN ACRES FRANCHISE GROUP LTD v REUBE [2014] NZHC 402 7 March 2014 (NZ High Court)

interim injunction application for restriction of trade until arbitration occurs – art 17B of the Arbitration Act 1996 – serious issue to be tried – restraint of trade – balance of convenience

2013

FOODSTUFFS (WELLINGTON) COOPERATIVE SOCIETY LTD v HOLDEN [2013] NZHC 3379 16 December 2013 (NZ High Court)

application to set aside arbitral award against an error of law – contract interpretation

BODY CORPORATE 172108 v MANCHESTER SECURITIES LTD CIV-2013-404-4284 10 December 2013 (NZ High Court)

application for leave to appeal against arbitral award under cl 5 sch 2 Arbitration Act 1996 in relation to repairs to a leaky building – remediation scheme approved by the court enabled respondent to carry out repairs and capped liability – body corporate issued a levy which the respondent disputed – arbitrator found that completion of the repair work on was not a pre-condition for applying the cap – should leave to appeal be given against the arbitrator’s interpretation of the clause?

WILES v BRANT HOMES LIMITED CIV-2013-404-03143 6 December 2013 (NZ High Court)

arbitration clause interpretation – jurisdiction

COXHEAD v WALLBANK [2013] NZHC 3249 5 December 2013 (NZ High Court) 

application to set aside arbitration award – error of law – valid commencement of arbitration – breach of natural justice 

CENATIO LTD v PARAGON BUILDERS LTD [2013] NZHC 3057 14 November 2013 (NZ High Court)

application to set aside statutory demand – abuse of process

JERLING v MOSS BROTHERS LTD [2013] NZHC 2893 1 November 2013 (NZ High Court)

application to set aside arbitral award – natural justice – damages

LIGHTER QUAY RESIDENTS’ SOCIETY INC v WATERFRONT PROPERTIES (2009) LTD [2013] NZHC 2678 15 October 2013 (NZ High Court)

comparison of arbitration and expert determination

COXHEAD v WALLBANK [2013] NZHC 2622 9 October 2013 (NZ High Court)

application to set aside arbitral award – arbitrator’s error of law – agreement to appeal on a question of law

WILBUR TRUST LTD v MOXHAM [2013] NZHC 1968 6 August 2013 (NZ High Court)

application to set aside statutory demand – arbitrator’s lack of jurisdiction – genuine dispute

THE LAW CONNECTION LTD v ROCHE [2013] NZHC 1742 12 July 2013 (NZ High Court)

application for summary judgment and concurrent application for stay of judgment – arbitration agreement excludes interlocutory relief, does this include summary judgement – arbitration agreement definition

CRANE DISTRIBUTION (NZ) LTD v DURRANT [2013] NZHC 1707 5 July 2013 (NZ High Court)

application for summary judgment and concurrent application for stay of judgment
 
LEEF v BIDOIS [2013] NZHC 1349 10 June 2013 (NZ High Court)

legal validity of the agreed to ‘Mana Whenua arbitration agreement’ –  definition of arbitration agreement – conflict of interest – breach of natural justice – discretion for court to set aside arbitral award

NEW ZEALAND LOCAL AUTHORITY PROTECTION PROGRAMME DISASTER FUND v THE NEW INDIA ASSURANCE COMPANY LTD [2013] NZHC 1327 6 June 2013 (NZ High Court)

application for stay of judgment – determined after conclusion of concurrent application for summary judgment – arguable defence – dispute

KIWI EMPIRE CONFECTIONERY LTD v SINGH [2013] NZHC 1272 31 May 2013 (NZ High Court)

application to set aside arbitration award – art 34 of the Arbitration Act 1996

DM ROBERTS LTD v MUDGWAY CA454-2012 [2013] NZCA 187 30 May 2013 (NZ Court of Appeal)

appeal to grant of stay for dispute to be arbitrated – dispute for arbitration – arguable defence test

ZURICH AUSTRALIAN INSURANCE LTD T/A ZURICH NEW ZEALAND v COGNITION EDUCATION LTD [2013] NZCA 180 29 May 2013 (NZ Court of Appeal)

application to stay proceedings based on art 8 of the Arbitration Act 1996 – dispute – interpretation of art 8(1) – jurisdiction

NGAI TAHU JUSTICE HOLDINGS LTD v THE ATTORNEY-GENERAL [2013] NZHC 801 18 April 2013 (NZ High Court)

application to search documents filed in a proceeding – proceeding stayed through consent of parties until arbitration referral by the court – privacy of arbitration

NEW ZEALAND LOCAL GOVERNMENT INSURANCE CORPORATION LTD v R+V VERISICHERUNG AG [2013] NZHC 690 9 April 2013 (NZ High Court)

application for summary judgment – responding application for stay of proceedings – arbitration clause function – jurisdiction – avoiding interpretation of contract as this is the Tribunal’s role

HEALTHLINK LTD v ORION SYSTEMS INTERNATIONAL LTD [2013] NZHC 594 27 March 2013 (NZ High Court)

application for stay of proceedings – is the proceeding a matter which is subject to arbitration under the agreement – extension of arbitration agreements by common law or statute – related parties – interpretation of arbitration agreement

NAPIER CITY COUNCIL v CITYSCAPE NEW ZEALAND LTD [2013] NZHC 600 26 March 2013 (NZ High Court)

appeal on questions of law of interim arbitral award – misconstrued clauses of the lease 

WATERS v PERRY FOUNDATION CIV-2011-419-1790 25 March 2013 (NZ High Court)

section 11 of the Arbitration Act 1996 not applicable to leases – determination of  contract as lease or licence

ASPEC CONSTRUCTION WELLINGTON LTD v DELTA DEVELOPMENTS LTD [2013] NZHC 5 7 March 2013 (NZ High Court)

interlocutory application for refusal of enforcement of arbitral award and application to set aside the award – breach of natural justice – refusal to allow time extension – is there a conflict with the public policy of New Zealand

GALLAWAY COOK ALLAN v CARR [2013] NZCA 11 15 February 2013 (NZ Court of Appeal)

appeal of High Court decision to set aside arbitral award – agreement to refer to arbitration included invalid and unenforceable right of appeal on questions of fact – jurisdiction – excess of jurisdiction

MANCHESTER SECURITIES LIMITED v BODY CORPORATE 172108 CIV-2012-404-5937 13 February 2013 (NZ High Court)

application to set aside statutory demand – remedial levy – arbitration – set-off – statutory demand – solvency

SHELL (PETROLEUM MINING) COMPANY LTD v VECTOR GAS CONTRACTS LTD [2014] NZHC 31 31 January 2013 (NZ High Court)

appeal against arbitration tribunal award – awards related to the allocation, quantum and pricing of gas – whether the Tribunal erred in ruling that the parties’ subsequent conduct should be excluded when interpreting the contract

2012

DISCOVERY GEO CORPORATION v STP ENERGY PTE LIMITED CIV-2012-485-2675 19 December 2012 (NZ High Court)

application for interim order – arbitration decision pending – jurisdiction Argyle Estates Ltd v Bowen Group Ltd, Advanced Cardiovascular Systems Inc v Universal Specialties Ltd, Bayat v Cecil, Rimini Ltd v Manning Management & Marketing Pty Ltd, Hamilton v Infiniti Capital Andante Ltd, Dale v Jeffrey – relief – balance of harm – reasonable possibility of success – delay

COGNITION EDUCATION LIMITED v ZURICH AUSTRALIAN INSURANCE LIMITED T-A ZURICH NEW ZEALAND CIV-2012-404-1246 5 December 2012 (NZ High Court)

objection to jurisdiction of court to refer dispute to arbitration – application for summary judgement priority Jowada Holdings Ltd v Cullen Investments Ltd – two approaches Todd Energy Ltd v Kiwi Power (1995) Ltd, SL Sethia Liners Ltd v State Trading Corporation of India Ltd and Royal Oak Mall Ltd, Reilly v Fletcher, Auckland City Council c Auckland Tepid Baths Ltd (No.1) – overview of case law

AS PIRE 2008 LTD v SPAZIO CASA FRANCHISING LTD [2012] NZHC 3153 26 November 2012 (NZ High Court)

costs

H&H CONTRACTORS LIMITED v LEIGHTON CONTRACTORS PTY LIMITED CIV-2010-404-4637 19 November 2012 (NZ High Court)

cancellation of contract – survival of arbitration clause

ALADDINS MOTOR INN LIMITED v BOWCORP HOLDINGS LIMITED CA16-2012 14 November 2012 (NZ Court of Appeal)

appeal of decision to uphold statutory demand – common law and arbitral award Vector Gas Ltd v Bay of Plenty Energy Ltd – costs

IRONSANDS INVESTMENTS LTD v TOWARD INDUSTRIES LTD CIV-2010-404-1289 and CIV-2010-404-2012 and CIV-2010-404-6843 15 November 2012 (NZ High Court)

costs

HIGHGATE ON BROADWAY LIMITED v DEVINE CIV-2012-406-136 16 October 2012 (NZ High Court)

arbitrator jurisdiction – tenant and landlord dispute – arbitration agreement – High Court proceedings

LEEF v BIDOIS CIV-2012-470-461 11 October 2012 (NZ High Court)

application to set aside arbitral award – court intervention Pupuke Service Station Ltd v Caltex Oil (NZ) Ltd, Attorney-General v Prince, Couch v Attorney-General – strike out application Abraham’s Wool Exchange v Norlake Wool Ltd, Downer-Hill Joint Venture v Government of Fiji, Ironsands Investments Ltd v Toward Industries – agreement invalidity – jurisdiction – independence Duncan & Davies Nurseries New Plymouth Ltd v Honnor Block Ltd – public policy conflict Amaltal Corporation v Maruha (NZ) Corporation Ltd, Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Company Ltd, London Expert Corporation v Jubilee Coffee Roasting – breach of natural justice

LIPP v CHANEY CIV-2011-404-8091 and CIV 2012-404-321 3 September 2012 (NZ High Court)

costs – equitable estoppel

RUA v MAMUKU HIGHLANDS LTD CIV-2012-463-137 27 July 2012 (NZ High Court)

application to appeal against arbitral award – jurisdiction Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd, Pupuke Service Station Ltd v Caltex Oil (NZ) Ltd

LIPP v CHANEY CIV-2011-404-8091 and CIV 2012-404-321 20 July 2012 (NZ High Court)

appeal – application to set aside arbitral award – error of law – onus of proof – representation – reasonable reliance – detriment – unconscionability – relief

IAKOPO v RUTHERFORD CIV-2012-404-1680 3 July 2012 (NZ High Court)

granting of interim injunction – did not apply schedule 1 article 9 but used the High Court Rules 

MUDGWAY v DM ROBERTS LIMITED CIV-2012-470-114 29 June 2012 (NZ High Court)

application to amend summary judgment application – stay of proceedings – alternative dispute resolution provided for – what constitutes invoking arbitration provision Royal Oak Mall Limited v Savory Holdings Limited

CARR v GALLAWAY COOK ALLAN CIV-2011-412-417 28 June 2012 (NZ High Court)

application to set-aside arbitral award – error of fact and law – grounds to set aside – invalidity Kearney v Whitehaven Colliery Co, Carney v Herbert, McFarlane v Daniell, Humphries v Proprietors of “Surfers Palms North” Group Titles Plan 1995 – absence of pleading/time bar – merits – estoppel Attorney-General v Howard – Methanex Motunui Ltd v Spellman – Contractual Mistakes Act 1977

TTAH LIMITED v KONINKLIJKE TEN CAFE N.V. CIV-2010-404-8250 18 June 2012 (NZ High Court)

application for stay of proceedings – similar arbitration process contractually agreed – discretionary

IRONSANDS INVESTMENTS LTD v TOWARD INDUSTRIES LTD CIV-2010-404-1289 and CIV-2010-404-2012 and CIV-2010-404-6843 8 June 2012 (NZ High Court)

reserved judgement – challenges to international arbitral award – strike out principles Downer-Hill Joint Venture v Government of Fiji, Shannon v Shannon, Paper Reclaim Ltd v Aotearoa International – Arbitration Act 1996 – fraud The Amphill Peerage, Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue – corruption of process – material non-disclosure
 

PACIFIC CHINA HOLDINGS LTD (IN LIQ) v GRAND PACIFIC HOLDINGS LTD CACV 136/2011 2 May 2012 (Hong Kong Court of Appeal)

International Court of Arbitration – appeal from judgment of Saunders J setting aside award – international commercial arbitration – UNCITRAL Model Law – ICC Rules of Arbitration

Dispute arose from demands to pay sums allegedly due under a Loan Agreement entered into as part of the acquisition of the applicant. Applicant argued that it was unable to present its case and/or the arbitral procedure was not in accordance with the agreemnt of the parties, and accordingly, the award ought to be set aside. Court will not consider the substantive merits of the dispute, or the correctness of the award, whether concerning errors of fact or law. On appeal the Court disagreed with Saunders J finding that violations of Article 34(2) of the Arbitration Ordinance had not been established and that Saunders J had not been entitled to interfere in what the appellate Court found to be case management decisions within the discretion of the tribunal to make. Appeal allowed and award re-instated.

LIPP v CHANEY CIV-2011-404-8091 30 April 2012 (NZ High Court)

application for stay of arbitral award – dismissed

SOUTH PACIFIC INDUSTRIAL LIMITED v UNITED TELECOMS LIMITED CIV-2012-488-202 13 April 2012 (NZ High Court)

opposition of freezing order –  jurisdiction Shaw v Narain, Bank of New Zealand v Hawkins, Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd – flexibility – good arguable case – discretionary factors

BJ PYE SHEETMETAL 2009 LTD v FORSMAN CIV-2011-485-2115 21 March 2012 (NZ High Court)

appointment of arbitrator – engineer role referral – prescribed time – delay

CAPITAL CONSTRUCTION LTD v LUXTA LTD CIV-2011-485-1622 AND CIV-2011-485-1719 AND CIV 2011-485-1839 23 February 2012 (NZ High Court)

application for leave for stand down period – error of law – affecting rights of parties – discretionary factors

LAWSON AND ROBINSON v WENLEY CIV-2010-441-833 22 February 2012 (NZ High Court)

application to appeal of arbitral award – Partnership Act – general justice and fairness consideration A’s Co Ltd v Dagger

2011

ALADDINS MOTOR INN LIMITED v BOWCORP HOLDINGS LIMITED CIV-2011-454-412 16 December 2011 (NZ High Court)

application to set aside statutory demand – Application to appoint arbitrator – Substantial dispute North Harbour Equine Hospital Ltd v Little – Proper debts Miller v Mattin – Contractual exclusion of set-off Browns Real Estate Ltd v Grand Lakes Properties Ltd, Benjamin Dev Ltd v Robt Jones Ltd

SCANTLEBURY v PINNY CIV-2010-470-000723 9 September 2011 (NZ High Court)

application for summary judgment – personal liability NZHB Holdings Ltd v Bartells – new evidence

DUNICK v NICHOLSON CIV-2011-404-3549 30 August 2011 (NZ High Court)

application to enter arbitral award as judgment – onus – definition of ‘award’ – costs

IRONSANDS INVESTMENTS LTD v TOWARD INDUSTRIES LTD CIV-2010-404-4879 30 August 2011 (NZ High Court)

costs – successful strike out of application to set aside interim arbitral award – granted

LUXOR VENDING LIMITED v THE WAREHOUSE GROUP LIMITED CIV-2011-404-4390 29 July 2011 (NZ High Court)

wrongful repudiation – application for injunction

IRONSANDS INVESTMENTS LTD v TOWARD INDUSTRIES CIV-2010-404-004879 8 July 2011 (NZ High Court)

TODD PETROLEUM MINING CO LTD v SHELL (PETROLEUM MINING) CO LTD CIV-2010-485-2122 and SHELL (PETROLEUM MINING) CO LTD v TODD PETROLEUM MINING CO LTD CIV-2010-485-2126 30 June 2011 (NZ High Court)

application appeal arbitral award – approach to granting leave Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd – strongly arguable – discretion – joint venture – contractual obligations – costs

PACIFIC CHINA HOLDINGS (IN LIQ) v GRAND PACIFIC HOLDINGS LTD HCCT 15/2010 29 June 2011 (Hong Kong Court of First Instance)

International Court of Arbitration – application to set-aside award – international commercial arbitration – UNCITRAL Model Law – ICC Rules of Arbitration

Dispute arose from demands to pay sums allegedly due under a Loan Agreement entered into as part of the acquisition of the applicant. Applicant argued that it was unable to present its case and/or the arbitral procedure was not in accordance with the agreemnt of the parties, and accordingly, the award ought to be set aside. Court will not consider the substantive merits of the dispute, or the correctness of the award, whether concerning errors of fact or law. Applicant established that the procedure adopted by the Tribunal was not in accordance with the agreement of the parties and that it was theeby unable to present its case. Applicant established violations of Article 34(2) and the Court’s discretion was exercised in favour of setting aside the award.

LAWSON AND ROBINSON v WENLEY CIV-2010-441-833 24 June 2011 (NZ High Court)

application appeal arbitral award – jurisdiction – partnership agreement – discretion

JUSTMINK LTD v TUHOE-WAIKAREMOANA MAORI TRUST BOARD CIV-2011-463-291 9 June 2011 (NZ High Court)

application to set aside arbitral award – conflict with common law – jurisdiction – arguable basis

STANAWAY REAL ESTATE LIMITED v COOPER & CO REAL ESTATE LIMITED CIV-2010-404-8007 18 May 2011 (NZ High Court)

appeal of arbitrator’s award – question of law Gold and Resource Developments (NZ) Ltd v Doug Hood Limited 

GAWITH v LAWSON CIV-2010-435-253 4 May 2011 (NZ High Court)

application for summary judgement – cross application for stay of proceedings – contractual agreement to arbitrate dispute – two approaches – arguable defence/Indisputability Fletcher Construction New Zealand v South Pacific Co-operative Dairies Ltd – stay precedent Todd Energy Limited v Kiwi Power (1995) Limited, Alstom New Zealand Limited v Contact Energy Limited – stay – notice

TGB HOLDINGS LTD v BFP TRUSTEES NO 1 LTD CIV-2009-488-566 4 April 2011 (NZ High Court)

freezing order – application on notice – equitable mortgage Hope v Hope, Buhr v Barclays Bank Plc – Ordinary course of business A v C, Gangway Ltd v Caledonian Park Investments (Jersey) Ltd, Bank of New Zealand v Hawkins – jurisdiction – legal fees as expenses Halifax Plc v Chandler, Sundt Wrigley Co Ltd v Wrigley, Rooney Earthmoving Ltd v McTague, Ward v Forsyth – discretion – interests of justice

TGB HOLDINGS LTD v BFP TRUSTEES NO 1 LTD CIV-2009-488-566 1 March 2011 (NZ High Court)

freezing order – Pick wick basis –  sole asset – preparation for trial of proceeding – dismissed – ordinary course of business – no bad faith

SPOTBURN FARMS LTD v STOCKCO LTD CIV-2010-404-3209 22 February 2011 (NZ High Court)

application for statutory demand – contractual agreement for arbitration – defects of statutory demand to set aside – injustice – dispute

2010

REAL COOL HOLDINGS LIMITED v PAGE & MACRAE LIMITED CIV-2010-470-685 12 November 2010 (NZ High Court)

oral contract – arbitration – application for leave to appeal on question of law – burden of proof

Application declined.

TAGGART v JIM VISSER LIMITED CIV-2010-404-3149 30 July 2010 (NZ High Court)

application for leave to set aside arbitral award – construction contract – terms of submission to arbitration – jurisdiction

The Court concluded that it was not clear that the factual basis underlying the application was made out. The parties were content to arbitrate all the issues between them with minimal documentation and aon a relatively informal basis. Having signed an agreement which said that the arbitration would be in full and final settlement of all matters between them, they should be held to that approach. Application dismissed.

SAFE KIDS IN DAILY SUPERVISION LTD v MCNEILL CIV-2010-404-1696 14 April 2010 (NZ High Court)

Schedule 1 article 9 – power of court to grant interim measures – status quo definition

2009

STATION PROPERTIES LTD (IN REC) v PAGET CIV-2009-664 22 December 2009 (NZ High Court)

application for summary judgment – test for arbitrable matters in dispute from the matters agreed – applied ‘arguable grounds’ approach from Fletcher/Brown Joint Venture v Kiwi Dairies Ltd HC, New Plymouth, CP 7/98, 27/5/98 and Natural Gas Corporation of New Zealand Ltd v Bay of Plenty Electricity Ltd HC Wellington, CP 179/99, 22/12/99.

TUNER v BODY CORPORATE 361510 CIV-2009-409-0307 12 August 2009 (NZ High Court)

article 8 Sch 1 – inoperative and void arbitration agreement –stay of proceedings granted due to arbitration agreement despite third parties

GOODACRE v PACIFIC ABODE HOMES (2004) LIMITED CIV-2009-404-002164 2 July 2009 (NZ High Court)

HENNAH v KELLY CIV-2009-441-0103 17 June 2009 (NZ High Court)

Appeal of arbitrator’s award – Question of law Gold and Resource Developments (NZ) Ltd v Doug Hood  Limited.

BODY CORPORATE 212002 v BEAUMONT PARTNERS LIMITED CIV-2009-404-001203 13 May 2009 (NZ High Court)

application for leave to appeal on question of law – ground rent dispute – relevant considerations to take into account when deciding whether to exercise discretion to grant leave

Leave to appeal refused as applicants failed to show proper case.

2008

GENERAL DISTRIBUTORS LTD v MELANESIAN MISSION TRUST BOARD CIV-2008-404-4436 21 November 2008 (NZ High Court)

Setting aside awards – Sch 1 Art 34 – a procedural ruling is not an award.

BODY CORPORATE 344862 v E-GAS LTD CIV-2007-485-2168 23 September 2008 (NZ High Court)

Application for summary judgment – test for arbitrable matters in dispute from the matters agreed – applied ‘anything disputable’ approach from Todd Energy Ltd v Kiwi Power (1995) Ltd HC, Wellington, CP 46/01, 29/10/01 and Alstom New Zealand Ltd v Contact Energy  Ltd HC, Wellington, CP 160/01, 12/11/01

SHADY EXPRESS LTD v SOUTH STAR FREIGHTLINER LTD CIV-2008-485-026 14 March 2008 (NZ High Court)

enforcement of an arbitral award – arts 35 and 36, sch 1, Arbitration Act 1996 – adequacy of arbitrator’s reason for award

2006

MADILL & SMEED LTD v EBERT CONSTRUCTION LTD CIV-2006-404-882 9 August 2006 (NZ High Court)

Extension of time – clause 7 Schedule 2 Arbitration Act 1996 – undue hardship – W&R Jack Ltd v Fifield [1999] 1 NZLR 48

CASATA LTD v GENERAL DISTRIBUTORS LTD [2006] NZSC 8 15 March 2006 (NZ Supreme Court)

costs – incomplete award if fails to deal with costs

CARTER HOLT HARVEY LTD v GENESIS POWER LTD CIV-2001-404-1974 22 February 2006 (NZ High Court)

Article 5 schedule 1 – court intervention – direct relationship between matters required.

2004

WOOLWORTHS NZ LTD v MONTERERY INVESTMENTS LTD CIV-2004-412-54 13 December 2004 (NZ High Court)

arbitration – appeal and cross-appeal from award – question of law
 

2003

METHANEX MOTUNUI LTD v SPELLMAN [2004] 1 NZLR 95 18 August 2003 (NZ High Court)

arbitration – interpretation – interpretive approach to be taken to provisions of Arbitration Act 1996 – setting aside award – whether parties can contract out of right to apply to have award set aside for breach of natural justice – nature and extent of parties’ right to notice of and reply to matters before arbitrator -­ standing – who qualifies as party for the purposes of application to set aside award – First Schedule, art 34 – natural justice – meaning of “party”

The Court held inter alia that, when interpreting the Arbitration Act 1996, the purposes of finality and party autonomy had to be balanced against the intention that parties be afforded minimum standards of procedural protection. In the present case the parties had ex­pressed themselves in an apparently contradictory manner by appointing an expert to determine the matter while stating that the process was to be an arbitration. Although the issue was to be resolved by identifying the dominant contractual intent, where the parties use the language of arbitration the Court would not lightly assume that a mere expert determi­nation was intended which precluded the rules of natural justice.

***Note appealed to Court of Appeal [2004] 3 NZLR 454

INTERACT v MCKAY CIV-2003-485-209 14 July 2003 (NZ High Court)

strike out – mandate of arbitrator – ill-health of arbitrator – incapacity

First defendant arbitrator brought application to strike out claim against him on basis no substantive relief was sought against him or available. The plaintiffs sought an order terminating the arbitral mandate of the arbitrator on the basis of incapacity. Given the arbitrator’s quasi judicial role, any application to remove an arbitrator is one involving only the parties to the dispute and the arbitrator should not be joined as a party to such litigation. Application of arbitrator granted.