Equuscorp Pty Ltd v Wilmoth Field Warne

Equuscorp Pty Ltd v Wilmoth Field Warne - [2003] VSC 279 - VSC 2003 case summary — Zoe

[19]

And so, by writ filed on 17 June 2003, Equuscorp commenced this proceeding. In a comprehensive statement of claim endorsed on the writ, Equuscorp sets out the gist of the Costs Deed and alleges that it has terminated it on 27 May 2003 but that WFW wrongfully refuses to accept that the Deed has been terminated. Notwithstanding this, the pleaders allege, WFW refuses to perform legal work under the Costs Deed so that Equuscorp has required WFW to elect whether Equuscorp's determination is accepted by it or not. It is then alleged that WFW seeks payment of its fees and disbursements at the normal rate with respect to nine specified matters including $125,405.40 with respect to "the Beagle File". The total amount of fees and disbursements said to be claimed by WFW for these nine files is about $940,000. It is alleged further that WFW has refused to deliver up the files unless this sum is paid into an account in the joint names of the parties. It is then alleged that such a demand was contrary to the provisions of the Deed, presumably for reasons which include Equuscorp's contention that WFW was entitled to payment of fees only at the discount rate. Equuscorp then alleges that it has paid or offered to make payment of the money claimed with respect to the Beagle file but that this will be done only following a reconciliation of certain discrepancies. It also alleges that it has paid all that is due on the remaining eight files, but at the discount rate only. This means that $373,969.10 has been paid against the sum of $730,701.35 sought by WFW in respect of these eight files. Finally, it is said that WFW has paid $500,000 into an investment account in trust for the parties pending arbitration of disputes between them regarding the fees of WFW for work done on the Beagle file. In its prayer for relief, Equuscorp seeks a declaration that it owns the files and is entitled to have them delivered up. Interlocutory and final injunctions are sought for the delivery of the files to Equuscorp and damages for their detention.

[33]

It is necessary to identify what precisely is the point of law. It will be recalled that the proofs of a party seeking a stay under s. 53 include a proof that the would-be litigator is "a party to an arbitration agreement". This may require a consideration of the meaning of the expression "arbitration agreement" which is defined in s. 4. In the case of an agreement which merely confers on one or both parties a right to refer the dispute to arbitration if it chose, there has been, historically, some debate as to whether such an agreement could, prior to the exercise of this right, be classified as an agreement to refer present or future disputes to arbitration and is therefore an arbitration agreement. This debate has arisen in the context of an application to extend time under s. 48. In such a case the applicant must be a party to an arbitration agreement. This debate has now ceased since the High Court has determined that such an agreement is an arbitration agreement and, accordingly, that such a party is a party to an arbitration agreement[5]. So long as that debate was alive, this was the point at which a stay application under s. 53 encountered difficulty where the agreement to arbitrate was of this kind. The section operated only where "a party to an arbitration agreement" commenced a proceeding in court. This was the point at issue before the New South Wales Court of Appeal in ABB Power Plants Ltd v Electricity Commission of New South Wales[6], decided some eight months before the PMT Partners' case. Now that this point is no longer arguable, attention in stay applications has shifted to the subject matter of the litigation. Is the litigation "in respect of a matter agreed to be referred to arbitration by the agreement"? In the PMT Partners' case the majority of the High Court expressed the view that this expression did not encompass a matter which a party to an arbitration agreement might, if it elected to do so, refer to arbitration, but had not yet done so[7]. This is the view also adopted by the Full Court in South Australia[8].

At a glance

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Judgment (50 paragraphs)

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Cases Cited (3)