NRT v MGN Pty Ltd & ACG Pty Ltd [2026] QSC 2

ARBITRATION - CONDUCT OF ARBITRAL PROCEEDINGS - TERMINATION OR STAY OF ARBITRATION PROCEEDINGS - where the second defendant applies for an order staying or restraining an arbitration between itself and the first defendant - where the plaintiff does not have a position - where the court proceeding and arbitration relate to the facility - where the plaintiff contracted with the first defendant to upgrade the capacity of the facility under the head contract - where the first defendant contracted with the second defendant under a consultancy agreement - where first and second defendants executed documents styled as deeds giving warranties to the plaintiff - where the head contract and the deeds do not contain arbitration clauses - where the Consultancy Agreement between the first and second defendant contains an arbitration clause - where this proceeding runs in parallel with an arbitration between the first and second defendant - where the arbitration and these proceedings have not progressed at the same rate - where the arbitration is set down for a six-week hearing in May 2026 - where the second defendant previously applied to the arbitrator to have the May 2026 hearing and related procedural directions vacated - where the second defendant's application to the court is substantially the same as the unsuccessful application made to the arbitrator - where the court should decide the application based on the principles that apply to the court's inherent power to grant anti-suit injunctions - where the second defendant relies on Carter Holt Harvey Ltd v Genesis Power [2006] NZHC 114; [2006] 3 NZLR 794 - where this court is bound by the High Court's decision in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 - where court ought to exercise its inherent jurisdiction to enjoin the arbitral proceedings only if that is necessary to protect the integrity of its processes once set in motion - where the first and second defendant agreed to arbitrate the disputes between them - where is necessary to examine the nature and extent of the overlapping issues between the arbitration and this proceeding - whether the arbitral proceedings will impair the integrity of the court proceeding - whether the court should order a stay or restrain an arbitration between the second defendant and the first defendant

Commercial Arbitration Act 2013 (Qld), s 5, s 8, s 16

Carter Holt Harvey Ltd v Genesis Power [2006] NZHC 114; [2006] 3 NZLR 794, not applied

Claxton Engineering Services Limited v TXM Olaj-Es Gazkutato Ktf [2011] EWHC 345 (Comm), cited

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33, followed

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 55 WAR 435; [2020] WASCA 77, considered

Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 698; (2004) 138 FCR 496, cited

Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549; (2018) 358 ALR 1, considered

Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43; [2005] 3 All ER 789, cited

Niclin Constructions Pty Ltd v Yatala Formwork Pty Ltd [2023] QSC 285, cited

J McKenna KC, with D Piggott KC and H Clift, for the Second Defendants

S Webster KC, with B Kabel and J Butcher, for the First Defendant

[1] The second defendant, ACG Pty Ltd ('ACG'), applies for an order staying an arbitration between ACG and the first defendant, MGN Pty Ltd ('MGN').[1] The stay is sought until the determination of this proceeding and any appeals arising from it. Alternatively, ACG seeks to stay parts of the arbitration.

[2] The plaintiff in this proceeding, NRT, took no position on the application for a stay of the arbitration.[2]

[3] NRT owns and operates the [REDACTED] ('the facility') [REDACTED]. In November 2016, NRT contracted with MGN to upgrade the capacity of the facility in exchange for a contract sum of about [REDACTED]. The parties refer to that as the Head Contract. In turn, MGN contracted with ACG under the Consultancy Agreement.

[4] As counsel for ACG explains,[3] [REDACTED] MGN and ACG executed documents styled as deeds giving warranties to NRT. On their face, those documents provided for execution by NRT as well. However, NRT did not execute the first document ('the First Deed'), but it did execute the second document ('the Second Deed').[4]

[5] Disputes about the upgrade works emerged first between MGN and ACG, then between NRT and MGN, and most recently between NRT and ACG.[5] The Head Contract, the First Deed, and the Second Deed, do not contain arbitration clauses. The Consultancy Agreement does contain an arbitration clause.[6] Consequently, MGN and ACG's disputes are the subject of an arbitration while NRT's disputes with MGN and ACG are the subject of this proceeding.[7]

[6] MGN commenced the arbitration against ACG in February 2022. In the arbitration, MGN contends that it has incurred substantial losses in completing the project because of ACG's failures. And, that ACG is liable either for damages or to bear 50% of the overall losses on the project, pursuant to specific cost-sharing provisions in the Consultancy Agreement.[8]

[7] A few months later, in July 2022, NRT commenced this proceeding against MGN alleging various breaches of the Head Contract associated with alleged technical defects in various aspects of the upgrade works.[9]

The Progress of the Arbitration and the Litigation

[8] As counsel for MGN explains, whilst they were commenced within five months of each other, the arbitration and these proceedings have not progressed at the same rate:

(a) in the arbitration, discovery has been completed, MGN delivered its lay and expert evidence earlier this year, and ACG is required to do so by 28 November 2025 and 14 January 2026 respectively; since February 2025, the Arbitration has been set down for a six-week hearing in May 2026;

(b) in this proceeding, NRT did not serve MGN until July 2023 (almost 12 months after commencing the proceeding), and it only obtained leave to join ACG as second defendant in June 2025; disclosure is ongoing and no lay or expert evidence has yet been delivered (NRT is obliged to deliver its evidence at the end of February 2026); no trial date has been set and, realistically, there will be no trial before 2027.[10]

[9] As explained above, NRT obtained leave to join ACG as the second defendant to this proceeding in June 2025. NRT claims against ACG for damages for alleged breach of, and declarations of entitlements to indemnity under, the First Deed and the Second Deed. The alleged breaches of the First Deed and the Second Deed include breaches of obligations to perform the Consultancy Agreement.[11]

[10] On 24 September 2025, ACG applied to the arbitrator, [REDACTED], to have the May 2026 hearing and related procedural directions vacated, pending the determination of this stay application. That application was dismissed by the arbitrator on 20 October 2025. The arbitrator's reasons included that vacating the hearing dates would:

(a) halt the progress of the present well-advanced arbitration and would negate the procedural orders made by the arbitrator by consent in February 2025;

(b) result in an indeterminate postponement of the hearing date in the arbitration, presently fixed for 4 May 2026;

(c) work a substantial prejudice to MGN, and a substantially greater prejudice to MGN than to ACG, because of the open ended and likely very lengthy delay to the hearing and determination of MGN's claims;

(d) work a prejudice to MGN because it had already provided its lay witness statements and expert reports so that if the procedural timetable was not maintained, ACG would benefit from a greater period of time to respond to MGN's evidence than the period agreed by the parties and directed by the arbitrator;

(e) run counter to the arbitration agreement by which the parties contracted to have their disputes arbitrated and run counter to the prosecution of that arbitration for a considerable period of time.[12]

[11] The arbitrator took the view that NRT's commencement of separate proceedings against MGN, and more recently the joinder of ACG to those proceedings, did not of itself justify the far-reaching orders sought by ACG to vacate the May 2026 hearing pending the determination of this stay application. In the view of the arbitrator, that was the case whether or not the issues in this proceeding were related or unrelated to the disputes in the arbitration.

"I consider that issues concerning the risk of abuse of the Court's process referred to by [ACG] are matters more appropriately addressed by the Court and are not matters for the Arbitral Tribunal, including because these issues and this question is currently the subject of an application to be heard and determined by the Court in the near future."[13]

[13] Having failed to persuade the arbitrator to halt the arbitration, ACG's application to the court is substantially the same as the unsuccessful application made to the arbitrator. That is, for this court to order a 'stay'[14] of the arbitration until this proceeding is resolved.

The Inherent Power and the decision in CSR v Cigna

[14] Two aspects need to be identified at the outset. The first is that whilst the application is expressed as an application for a stay of the arbitration what was really being sought was an anti-suit or anti-arbitration injunction rather than a stay. The originating application was amended during the course of the hearing so that the amended application was for an order "staying or restraining" the arbitration.[15]

[15] The second is that the parties are agreed that the court should decide ACG's application based on the principles that apply to the court's inherent power to grant anti-suit injunctions. As was made clear by the High Court in CSR Ltd v Cigna Insurance Australia Ltd that power is not to be restricted to defined and closed categories.[16] Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or its own processes.[17]

[16] The parties are agreed that the court is not here exercising the equitable power to make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights.[18] If that were the case, the bringing of the legal proceedings would involve unconscionable conduct or the unconscientious exercise of a legal right. In that event an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought.[19]

[17] Instead, in this case there are no allegations of unconscionable conduct or unconscientious exercise of legal rights. In any event, section 5 of the Commercial Arbitration Act provides that, "(i)n matters governed by this Act, no court must intervene except where so provided by this Act". Given its plain language, that provision would seem to prevent the court exercising equitable jurisdiction over a commercial arbitration in Queensland.[20]

[18] In any event, the parties agree that the court's task on this application is confined to a consideration of the application of the court's inherent power.[21] Therefore, the key question to be considered is whether the restraint of the arbitration is necessary for the administration of justice in order to protect the court's own proceedings or the court's own processes. Or, as it is expressed in CSR Ltd v Cigna Insurance Australia Ltd the court will exercise its inherent jurisdiction to "protect the integrity of its processes once set in motion".[22]

[19] Thus, the court's inherent power to order an 'anti-arbitration injunction'[23] is a restricted power. It is a power only available to protect the integrity of the court's own proceedings, although that power may be exercised in a variety of circumstances and is not restricted to defined or closed categories.

[20] ACG relied on the decision of the New Zealand High Court in Carter Holt Harvey Ltd v Genesis Power ('Carter Holt').[24] The decision has some relevance because the facts align with the facts in this case. Counsel for ACG described that case as closest to this case.

[21] Carter Holt Harvey Ltd sued the first defendant, Genesis Power Ltd, for breaches of what was known as the co-generation contract, which did not contain an arbitration clause.[25] Carter Holt Harvey Ltd also sued the second defendant, Rolls Royce New Zealand Ltd, for negligence. That court proceeding was commenced some time in 2001.

[22] Genesis Power and Rolls Royce were also parties to what was known as the turnkey contract, which contained an arbitration clause. An arbitration was commenced in early 2004 under that arbitration clause and was running in parallel to the court proceeding by the time of the court's decision.

[23] Rolls Royce applied to the arbitrator for a stay of the arbitration. The arbitrator refused the application because he was not satisfied that there was an abuse of process arising through alleged duplication of the claims.

[24] Rolls Royce then applied to the court for a 'stay' of the arbitration.

[25] The reasoning of Randerson J was as follows.

[26] First, his Honour started from the proposition that, prior to the introduction of the New Zealand equivalent of the Commercial Arbitration Act 2013 (Qld) ('the Act'), the New Zealand High Court had a broad jurisdiction to order a stay of arbitral proceedings where it was in the interests of justice to do so.[26] However, that was a jurisdiction sparingly exercised.[27]

[27] Second, his Honour found that an arbitrator has implied power to stay or adjourn arbitral proceedings where the interests of justice so require. That implied power derived from the authority conferred on the arbitral tribunal to conduct the arbitration in such a manner as it considers appropriate.[28]

[28] Third, where the New Zealand equivalent of section 8 of the Act,[29] is engaged, the court is obliged to grant a stay of the court proceedings except in the limited circumstances defined in section 8(1). And section 8(2) recognises that where court proceedings have been brought, arbitral proceedings may be commenced or continued notwithstanding. That is an explicit statutory recognition of the position established by previous case law, that there is no objection in principle to matters proceeding in parallel before both a court and an arbitral tribunal.[30]

[29] Fourth, where section 8 is engaged, the effect of section 5 is to restrict the jurisdiction of the court to the mandatory grant of a stay of the court proceedings (where a party so requests) and, to refer the parties to arbitration unless the court finds that any one of the exceptional circumstances specified in section 8(1) is established.[31]

[30] Fifth, section 8 was not engaged in that case because the proceeding before the court, that is, the proceeding commenced by Carter Holt against Genesis Power and Rolls Royce was not "the subject of an arbitration agreement".[32]

[31] Sixth, on his Honour's analysis of the New Zealand equivalent of the Act it follows that the prohibition against court intervention in section 5 does not apply so as to exclude the power of the court to grant a stay of arbitral proceedings where it is appropriate to do so.

[33] The first problem is that section 5 is broadly expressed: "In matters governed by this Act, no court must intervene except where so provided by this Act [emphasis added]." And yet the approach taken by Randerson J in Carter Holt is to read section 5 narrowly as if it read: "In matters [where a provision of this Act is engaged], no court must intervene except where so provided by this Act" [emphasis added]. The narrow interpretation leaves section 5 with little or no work to do when the evident intention was to exclude the court's intervention where the subject of the controversy was covered by the New Zealand equivalent of this Act.[33] That intention is clear from the Secretary-General of United Nations Commission on International Trade Law's ('UNCITRAL') commentary on the proposed model law:

"2. Although the [article 5/section 5], due to its categorical wording, may create the impression that court intervention is something negative and to be limited to the utmost, it does not itself take a stand on what is the proper role of courts. It merely requires that any instance of court involvement be listed in the model law. Its effect would, thus, be to exclude any general or residual powers given to the courts in a domestic system which are not listed in the model law. The resulting certainty of the parties and the arbitrators about the instances in which court supervision or assistance is to be expected seems beneficial to international commercial arbitration."[34] [emphasis added]

[34] In Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd,[35] admittedly a very different case, Quinlan CJ adopted a rather broad interpretation of the West Australian equivalent of section 5:

"In the particular context of s 5, in my view, the word 'matters' is used in the sense of 'circumstances or things regulated by the Act'. This construction is borne out by its context in the phrase 'matters governed by this Act'. The notion of a matter being 'governed' by the Act points to the kind of matters identified in [301] above."[36]

[35] Quinlan CJ was careful to explain that his preferred interpretation is that the word 'matters' as it appears in section 5 (i.e. 'matters governed by this Act') is not to be equated with the use of the word 'matter' in section 8 (i.e. 'matter which is the subject of an arbitration agreement'). The Chief Justice's view was that the word 'matter' does not have the same meaning in the two provisions and the word is used in a variety of different ways throughout the statute. That broad view of section 5 is inconsistent with the rather narrow view adopted by Randerson J in Carter Holt.

[36] At paragraph 301, Quinlan CJ had noted that the Western Australian equivalent of the Act confers upon the courts a variety of powers and functions in relation to which the court may intervene in the arbitral process. They include matters such as the appointment of arbitrators, challenging arbitrators, termination of an arbitrator's mandate, recognition and enforcement of interim measures, assistance with taking evidence, determining questions of law, recourse against awards, and enforcement of awards.

[37] An example of a situation where the court is authorised by the Act to intervene is section 16.[37] That section provides a regime for the deciding of pleas that the arbitral tribunal does not have jurisdiction. In the context of that regime, it would be impractical to adopt a narrow interpretation so that where, for instance, a particular provision is not engaged the court may nevertheless consider the issue of jurisdiction.[38] The better view is to regard issues of jurisdiction as a matter governed by the Act. As Quinlan CJ explained in Hancock Prospecting:

"Carter Holt does not assist the appellants. On the contrary, it confirms my view that the purpose of s 5 is to confirm that where a particular matter, involving the courts, is dealt with in the Act ('matters governed by this Act'), the court's powers are to be determined by, and only by, the provisions of the [CAA]. As Randerson J expressed it: the intention of s 5 is 'where a particular topic or set of circumstances is governed by the [CAA], to exclude any general or residual powers given to the domestic court which are not specified in the [CAA].'"[39]

[38] The second problem with the logic in Carter Holt is that Randerson J drew on the implied power of an arbitrator to stay or adjourn the arbitral proceedings where the interests of justice so require.[40] That is not a particularly helpful step in the logic because it deals with an arbitrator's control of the arbitrator's own process when the core problem is whether and when the court should interfere in the arbitral process. At the least, one of the rationales for the new legislation[41] was the idea that parties who agree to arbitrate should be held to that bargain and that "(a) major purpose of the new Act was to reduce drastically the extent of intervention of Courts in the arbitral process."[42]

[39] As the explanatory note by the UNCITRAL Secretariat on the model law explained:

"Recent amendments to arbitration laws reveal a trend in favour of limiting and clearly defining court involvement in international commercial arbitration. This is justified in view of the fact that the parties to an arbitration agreement make a conscious decision to exclude court jurisdiction and prefer the finality and expediency of the arbitral process."[43]

[40] The third problem with the logic in Carter Holt is that whilst it postdates the High Court's decision in CSR Ltd v Cigna Insurance Australia Ltd, Carter Holt contains no reference to CSR Ltd v Cigna Insurance Australia Ltd.[44] Certainly, this court is bound by the High Court's decision in CSR Ltd v Cigna Insurance Australia Ltd in a way that the New Zealand High Court was not.

[41] In any event, the clarity and precision provided by the High Court may have been useful. Instead, in Carter Holt Randerson J started from the proposition that, prior to the introduction of New Zealand's equivalent of the Act, the court had a broad (and seemingly fused) jurisdiction to order a stay of arbitral proceedings where it was in the interests of justice to do so. The High Court's approach in CSR Ltd v Cigna Insurance Australia Ltd was very different. The High Court made clear that there are two distinct bases on which an anti-suit or anti-arbitration injunction may be granted:

(a) in the exercise of the court's inherent jurisdiction to "protect the integrity of its processes once set in motion"; and

(b) in the exercise of court's equitable jurisdiction either to enforce a legal right or to restrain conduct that is vexatious and oppressive to a party.[45]

[42] Different principles apply to each basis. And so, as O'Callaghan J explained in Kraft Foods Group Brands LLC v Bega Cheese Ltd:

"It is, therefore, critical to keep in mind the distinction between injunctions granted in exercise of the inherent power... and those granted in the exercise of equitable jurisdiction."[46]

[43] And so, it is true that Carter Holt has some factual similarities with this case. However, it is difficult to attach much significance to the factual similarities. There are some obvious differences. In Carter Holt, the court proceedings were commenced well before the arbitral proceeding. And the 'overlap' in the issues in the parallel proceedings was more extensive.[47] Importantly, it is appropriate for this court to put aside the approach adopted in Carter Holt and to use the High Court's judgment in CSR Ltd v Cigna Insurance Australia Ltd as the preferred starting point.

[44] Consequently, the court ought to exercise its inherent jurisdiction to enjoin the arbitral proceedings only if that is necessary to "protect the integrity of its processes once set in motion".

[45] Thus, the question is whether the integrity of the court's process is in need of protection. That means that the focus is on the effect of the arbitral process on the court proceeding to see whether this is one of those rare cases where the continuation of an arbitration constitutes an abuse of court process.[48]

[46] ACG submits that, in exercising its discretion the prevent abuse of its process, one question for the court to consider is whether there is such a substantial overlap between the arbitration and court proceeding that it would be inappropriate for parties to proceed in parallel, having regard to the risk of conflicting findings of law or fact, oppression, or more pragmatic reasons of economy or efficiency.[49]

[47] That 'one question', that is, whether the degree of overlap means that it is appropriate for the court to stay either the court proceedings or the arbitral proceedings in the exercise of its inherent jurisdiction,[50] is really only one factor in a broader inquiry. That broader inquiry is whether the court ought to exercise its inherent jurisdiction to enjoin the arbitral proceedings to protect the integrity of the court's processes. Care needs to be taken to ensure that remains the broader inquiry and that the broader inquiry is not replaced by the simpler and narrower question of whether there is a substantial degree of overlap in the issues to be decided by the court and by the arbitrator.

(a) the mere co-existence of parallel proceedings is not, without more, vexatious and oppressive;[51]

(b) on the other hand, where there is a complete correspondence between the issues raised in the two parallel proceedings that is a good indication that one proceeding can be viewed as vexatious or oppressive;[52]

(c) if proceedings are regularly commenced, they do not become vexatious or oppressive when another proceeding is instituted by another party;[53] it matters who has commenced the parallel proceedings;[54]

(d) courts prefer to avoid disruption and multiplicity of litigation, in particular a desire to avoid parallel proceedings and the risk of inconsistent findings, and to avoid the causing of inconvenience to third parties;[55]

(e) where the parallel proceedings comprise a court proceeding and an arbitration, there are further and slightly different dimensions to the exercise of the inherent jurisdiction (as explained below), although the critical question is still whether restraining the taking of any further steps in the arbitration is necessary for the administration of justice to protect this court's own proceedings or processes;[56]

(f) one aspect of those further dimensions is that the parties to the arbitration have a contractual right to have their dispute arbitrated - that is their chosen forum - or, expressed in the negative, the courts are keen to hold commercial parties to their bargain;[57]

(g) that means that the courts should give effect to the parties' agreement to arbitrate unless there are "strong reasons" to take another course;[58]

(h) another reason for respecting the parties' choice of arbitration is that there are real and significant differences between court proceedings and arbitration; one of those differences is that litigants in court proceedings take their place in the court system among many litigants, each of whom essentially draws on the publicly funded resources of the State or Federal court system; on the other hand, combatants in arbitral proceedings are generally commercial enterprises that agree to jointly fund a private arbitral process that is tailored to the specific needs of those combatants; these commercial litigants agree to, in effect, operate outside the court system and agree to do so in private;

[49] ACG argued that there was a useful analogy with the exercise of the discretion to order a separate question.[62] In that context the court's preference is for all issues of fact and law in a proceeding to be determined at the one time. However, I do not accept that area of the law as a useful analogy. The discretion to order that a question be determined separately before the trial of the proceeding is a wide discretion and must be exercised having regard to what is just and convenient.[63] That is an entirely different discretion to the court's inherent jurisdiction to enjoin an arbitration in order to protect the integrity of the court's processes.

[50] An obvious difference is that, in determining whether the court should decide a separate question, the court is considering whether one or more issues should be extracted from the litigation and decided in advance of a trial of all of the issues. In determining whether an arbitration ought to be enjoined the court is faced with two existing and factually related proceedings, one in court and one in an arbitral tribunal. In the latter case the assumption is that both proceedings, if properly commenced, ought to proceed unless there is a need to protect the integrity of the court proceeding by enjoining the arbitral proceeding.

[51] One reason for the difference in the principles governing the exercise of the two different discretions is that, where there are parallel and factually related proceedings in a court and in an arbitral tribunal, the parties have agreed to arbitrate - a topic that to which I will now turn.

[52] It is plain that MGN and ACG agreed to arbitrate the disputes between them. The arbitration was commenced in February 2022. A hearing is set for May 2026. The parties' agreement to arbitrate is deserving of respect. The parties, both of whom are commercial entities, willingly chose arbitration as the forum for their disputes. The court ought not lightly permit either party to depart from the terms of their bargain.

[53] ACG submits that there are at least three levels at which the issues of fact and law to be resolved in the arbitration overlap with the issues of fact and law to be determined by the court in the proceeding:

(a) the first level is the overarching overlap in the scope of the claims and counterclaims in both the proceeding and the arbitration such that they require consideration of the 'entire story' of the project;

(b) the second is the level of particular claims and counterclaims advanced in the arbitration and the proceeding;

(c) the third is at the level of specific allegations of fact and law made in the arbitration and the proceeding.[64]

[54] In my view, it is doubtful that the first level has any particular utility. Litigation involves the resolution of causes of action alleged by one party against the other. Even in large commercial litigation or arbitration the role of the court or the arbitrator will rarely, if ever, require a consideration of the entire story of the project.[65] The parties and participants in the project will have different perceptions of what comprises the 'entire story' of the project. The task of the court or tribunal is not to assess which version is more accurate but rather to decide the issues disclosed by the pleadings.

[55] The important assessment of the overlap involves an assessment of the causes of action alleged in the parallel proceedings - that is the second level - the particular claims and counterclaims alleged by each party against the other. The third level comprises, presumably, the elements of the causes of action and is therefore a subset of the causes of action. The third level appears to be the equivalent of the 'pathway' to the decision on issues discussed by MGN in its submissions[66] by reference to the decision in Northern Regional Health Authority v Derek Crouch Construction Co Ltd.[67] MGN argues that:

"...to the extent that issues in the Arbitration and the· Proceeding overlap, that is because the "pathway" to deciding the issues may involve the Court and the Arbitrator considering the same or similar subsidiary issues of fact. But that possibility arises simply because both proceedings share some of the same factual background. Conceptually, MGN's claims in the Arbitration and NRT's claims in the Proceeding are different and distinct."[68]

[56] In some cases, it may be possible to discern from the pleadings that there is a central issue. In Kraft Foods Group Brands LLC v Bega Cheese Ltd,[69] for example, O'Callaghan J was able to conclude that the pleadings exchanged by the parties in the court proceeding made it sufficiently clear that a central issue to be determined at trial was the ownership of the goodwill in the "packaging and get-up" (as it was referred to in the pleadings in the court proceeding) or the "trade dress" (as the packaging and get-up was referred to in the arbitration).

[57] This case is not a situation where the same "central issue" rises in two different fora and is being prosecuted by the same claimant. Such a situation, not present in this case, would tend to reveal that claimant as indulging in a degree of oppression or vexation. That would be a factor favouring an anti-arbitration injunction in order to protect the integrity of the court's processes.

[58] Before considering the issues, three things must be recognised. The first is that, from this distance at least, it is difficult to be definitive about the issues that will be litigated and arbitrated. Issues might change. Concessions may be made, or issues may be abandoned or altered. That could occur even during the respective hearings. And, if the arbitration proceeds first, the evidence and arguments in the arbitration may influence or narrow the litigation.[70]

[59] The second is that, whilst both parties attempted to classify the types of issues that overlap, it is an exercise with limited utility. On the one hand, the existence of a central legal issue common to both the litigation and the arbitration might not impact the integrity of the court process. On the other hand, multiple factual issues in common may be oppressive and may have a potential to be damaging to the integrity of the court process. In each case, the assessment of any prejudice to the integrity of the court process is not likely to be assisted by a rigorous process of carefully categorising the common issues. The focus of such a process, an exercise in taxonomy, tends to distract from the core inquiry required by the High Court in CSR Ltd v Cigna Insurance Australia Ltd.[71] The preferable approach is to examine the nature and extent of the overlap and to directly ask whether that overlap impacts the integrity of the court's process.

[60] The third is that the arbitrator is well acquainted with the potential for the litigation and the arbitration to cover the same ground. The arbitrator can, and is equipped to, take appropriate steps to minimise any potential for the parallel proceedings to cover the same ground. The arbitrator has already taken steps to manage potential overlap by postponing some issues.

[61] It is necessary to examine the nature and extent of the overlapping issues.

[62] In the arbitration MGN makes these claims which are contested by ACG:

(a) [REDACTED] (the first claim);

(b) [REDACTED] (the second claim);

(c) [REDACTED] (the third claim);

(d) [REDACTED] (the fourth claim);

(e) [REDACTED] (the fifth claim); and

(f) [REDACTED] (the sixth claim).[72]

[63] It is common ground that the fifth and sixth claims ought not be the subject of any hearing or award in the arbitration until after the resolution of this proceeding. MGN concedes that is so because those claims are contingent on the outcome of this court proceeding.

[64] However, the first to fourth claims are all claims as between MGN and ACG. They are allegations of breaches of the agreements between them. They are allegations quite independent of NRT's claims made in this proceeding against MGN and ACG.[73]

[65] ACG makes three counterclaims in the arbitration for:

(a) [REDACTED];

(b) [REDACTED]; and

(c) [REDACTED].

[66] NRT's claims against MGN in the court proceeding comprise claims for liquidated damages, as well as claims for breach of contract and in negligence, or misleading and deceptive conduct, arising from:

(a) [REDACTED];

(b) [REDACTED];

(c) [REDACTED]; and

(d) [REDACTED].[74]

[67] MGN defends NRT's claims. And, MGN has counterclaimed for breaches of NRT's obligations in respect of the independence of the superintendent, and for breaches of contract and misleading and deceptive conduct [REDACTED].[75]

[68] NRT's claims against ACG are similar to, and overlap with, NRT's claims against MGN. Those claims are for breaches of contract and/or negligence arising from:

(a) [REDACTED];

(b) [REDACTED];

(c) [REDACTED].[76]

[69] That summary of the parallel proceedings demonstrates that, by broad overview, the arbitration involves contractual claims between MGN and ACG, and the court proceeding involves what are essentially design complaints made by NRT against MGN and ACG. NRT goes so far as to say that the design of the facility makes it not fit for purpose.

[71] I am not persuaded that there is a substantive overlap here.[78] As MGN points out:

(a) NRT's claim in this court proceeding is not concerned with the costs incurred by MGN to deliver the project;

(b) the question of whether those costs were reasonable is not an issue in the court proceedings;

(c) NRT's claim is concerned with the costs it says are now required to be incurred to rectify alleged defects.[79]

[72] Nevertheless, it can be accepted that, perhaps by way of a side-wind, there is a prospect or possibility of an overlap in the facts considered by both tribunals. That is because there may be a relationship between any finding made by the arbitrator as to whether MGN's costs were reasonably and properly incurred and the finding made by the court as to whether the work was defective.

[73] However, much will depend on the findings made by the arbitrator.

[74] The real difficulty for ACG is that merely pointing to a prospect or possibility of an overlap does not establish an impairment to the integrity of the court proceeding. There is a myriad of possibilities as to the findings that may be made by the arbitrator. And the findings made by the arbitrator may favour either party or the arbitrator may find it not necessary to decide factual issues that will be the subject of the court proceedings. Then, the parties may accept the arbitral finding. They may accept that the court is likely to arrive at a similar conclusion in the proceedings brought by NRT.

[75] The mere existence of a possible overlap in the factual findings does not establish a real risk of impairment of the court process by the continuation of the arbitration.

"...the Court should refuse to exercise its discretion in light of ACG's delay in bringing the present application. Delay is a "powerful factor" against restraining the continuance of an arbitration. Nor will the Court allow the parties to an arbitration to "blow hot and cold". Relevantly, ACG has been aware of the Proceeding and that it would have a bearing on the issues the subject of the Arbitration since at least November 2023 and it has been aware of its likely joinder to the Proceeding since at least January 2025... The procedural timetable for the Arbitration was set in February 2025, but ACG's Stay Application was only made in September 2025, two and a half months after ACG was joined to the Proceeding, almost two months after MGN delivered the bulk of its lay evidence in the Arbitration, and days before MGN delivered its expert evidence...

Not only has ACG been aware of the Arbitration, but since February 2025 it has taken various steps in it...

Within the period of ACG's delay, MGN incurred the cost of completing and delivering its lay and expert evidence." [footnotes omitted]

[77] I am not persuaded that ACG has delayed to a significant extent.

[78] The more important point for present purposes is that the arbitration is well advanced. The hearing is set for May 2026. That hearing date has been set for nearly a year. MGN's lay and expert evidence has been delivered. That the parties have embarked on the preparation of what is, in effect, their evidence-in-chief means that important decisions have been made about what evidence will be presented to the arbitrator and how that evidence will be presented and even what counsel will be retained for the hearing. The purpose of mentioning that is not to suggest that any 'point of no return' has been reached but rather to emphasise that the arbitration is well-advanced and there is likely to be substantial disruption to one or more of the parties, the legal teams, the witnesses, and even the arbitrator. Enjoining the arbitration now would cause some disruption because it is uncertain when the arbitration might be resumed.

[79] That is in circumstances where it has not been established that the arbitral proceedings will impair the integrity of the court proceeding.

[80] Even if there is an overlap to the extent asserted, allowing the arbitration to proceed to the May 2026 hearing, and an interim award, has not been shown to impair the integrity or conduct of this court proceeding.[80] To date, steps have been taken in parallel in both the arbitration and this proceeding without any impairment of the court's functions.[81] The arbitrator is appropriately managing the arbitration having regard to the parallel court proceedings. There is no reason that this cannot continue.[82]

[81] For those reasons I dismiss ACG's application for an order staying the arbitration or for an anti-arbitration injunction. I will hear the parties on costs.

[1] The arbitration is being administered by the Australian Centre for International Commercial Arbitration [REDACTED].

[7] Ibid. Note that, as explained below, ACG was only added to this proceeding in June 2025.

[12] This summary is based on the passages quoted in MGN's submissions at [13]. The reasons were delivered on 7 November 2025.

[13] Arbitrator's reasons at [113] - quoted in ACG's submissions at [17]. As is clear from the arbitrator's reasons, the application to this court had been filed before the arbitrator delivered his reasons. [REDACTED].

[16] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392.

[19] Ibid. Note that the equitable jurisdiction may be exercised in aid of legal rights such as a contract not to sue or a contract to submit to the exclusive jurisdiction of the courts of the forum: CSR Ltd v Cigna Insurance Australia Ltd, supra, at 392. The equitable jurisdiction may also be exercised where there are proceedings in another court, including in a foreign court, which are vexatious or oppressive: CSR Ltd v Cigna Insurance Australia Ltd, supra, at 393.

[20] The decision in Carter Holt Harvey Ltd v Genesis Power [2006] NZHC 114; [2006] 3 NZLR 794 reaches the opposite conclusion on the equivalent New Zealand legislation. That reasoning was approved by Quinlan CJ in Hancock v DFD Rhodes [2020] WASCA 77; (2020) 55 WAR 435 at [313] (with whom Beech and Vaughan JJA agreed). However, as ACG's submissions explain at [66], that case involved a complicated melange of parties and disputes.

[22] CSR Ltd v Cigna Insurance Australia Ltd, supra, at 391.

[23] MGN uses this expression in their submissions and the expression is used in a number of cases. It has a little more accuracy than a 'stay'.

[24] [2006] NZHC 114; [2006] 3 NZLR 794.

[25] This summary is based on ACG's summary of the facts of the case in its submissions at [52]-[55]. MGN's submissions contain a similar summary at [75]-[78].

[26] [2006] NZHC 114; [2006] 3 NZLR 794 at [33].

[28] [2006] NZHC 114; [2006] 3 NZLR 794 at [47].

[29] Section 8 of the Act is as follows:

"(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court."

[30] [2006] NZHC 114; [2006] 3 NZLR 794 at [49].

[31] [2006] NZHC 114; [2006] 3 NZLR 794 at [54].

[32] [2006] NZHC 114; [2006] 3 NZLR 794 at [57]- [59].

[33] In Carter Holt Harvey Ltd v Genesis Power [2006] NZHC 114; [2006] 3 NZLR 794, Randerson J refers to the reports of UNCITRAL, its secretariat and its working groups in respect of the model law and, in particular, the Seventh Secretariat note of 25 March 1985 which notes that section 5 would not exclude court intervention in any matter not regulated in the model law.

[34] Secretary-General of UNCITRAL, Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration (UN Doc A/CN.9/264, 25 March 1985), at 18. This passage was referred to and relied on by MGN in its written submissions at [69].

[35] [2020] WASCA 77; (2020) 55 WAR 435 at [306] (Beech and Vaughan JJA agreed). This passage was quoted with evident approval by the Queensland Court of Appeal in XY v UV [2024] QCA 244 at [15].

[36] At paragraph [301] the Chief Justice had noted that the Act confers upon the courts a variety of powers and functions in relation to which the court may intervene in the arbitral process (explained below).

[37] Section 16 in the Western Australian equivalent of the Act is in the same terms as s 16 in the Act.

[38] For example, the arbitral tribunal may rule, as a preliminary question, that it has jurisdiction. That has the consequence that any party may request the court to decide the jurisdictional issue if that party does so within 30 days after having received notice of that ruling: section 16(9).

[39] [2020] WASCA 77; (2020) 55 WAR 435 at [322]. This passage was quoted with evident approval by Cooper J in XY v UV [2024] QSC 262 at [61].

[40] This is the second step in the logic explained above.

[41] The new legislation in Australia and New Zealand was based on the UNCITRAL model law was approved by the General Assembly of the United Nations on 11 December 1985; it has since been adopted by approximately 50 countries and incorporated into domestic legislation, although not necessarily in precisely the same form as the model law: Carter Holt at [40].

[42] Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43; [2005] 3 All ER 789 per Lord Steyn at [26] - a passage quoted by Randerson J in Carter Holt Harvey Ltd v Genesis Power [2006] NZHC 114; [2006] 3 NZLR 794 at [36].

[43] Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial Arbitration as amended in 2006 at [15]. Quinlan CJ referred to this passage in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 at [308]. And, again, this is a passage was referred to and relied on by MGN in its written submissions at [70].

[44] It may be that his Honour was not referred to that decision. There is no suggestion in the report that the court was referred to CSR Ltd v Cigna Insurance Australia Ltd.

[46] [2018] FCA 549; (2018) 358 ALR 1 at [64].

[47] This point is made in MGN's submissions at [86]. The overlap is discussed below.

[48] Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (1997) 18 WAR 334 at 345.

[50] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 at [313].

[51] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393.

[54] See, for example, Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549; (2018) 358 ALR 1 at [109] where O'Callaghan J pointed out that Kraft was the party responsible for the bringing of both proceedings; it alone was the author of the possibility or probability of duplicated litigation and inconsistent findings.

[55] Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 698; (2004) 138 FCR 496 at [47].

[56] Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549; (2018) 358 ALR 1 at [98]- [104].

[57] Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 698; (2004) 138 FCR 496

[58] See FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association (1997) 41 NSWLR 559 at 569B-569F and the cases quoted there.

[59] Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549; (2018) 358 ALR 1 at [79].

[60] Claxton Engineering Services Limited v TXM Olaj-Es Gazkutato Ktf [2011] EWHC 345 (Comm) at [34], a passage quoted and relied on by O'Callaghan J in Kraft Foods at [99].

[61] Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549 at [103], applying CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 398.

[62] As ACG's submissions point out at [74], Martin SJA recently summarised the principles applying to the exercise of discretion to order a separate question in Niclin Constructions Pty Ltd v Yatala Formwork Pty Ltd [2023] QSC 285 at [6]. ACG's submissions drew heavily on the analogy arguing that the cautions in the cases against embarking on a determination of separate questions have additional resonance in the context of the Arbitration: ACG's submissions at [79].

[63] Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287 at 288.

[64] ACG's submissions at [80]-[83].

[65] Even a total cost claim does not involve an inquiry into the whole project but rather an examination of the costs of the project.

[66] MGN's submissions at [120]-[125]. MGN's submissions propose a slightly different categorisation: ultimate issue, central issue and subsidiary issues of fact that may need to be decided on the 'pathway' to deciding issues of fact: MGN's submissions at [112]. As is later explained, there is limited utility in trying to classify the common issues.

[67] [1984] QB 644.

[69] [2018] FCA 549 at [73].

[70] As MGN points out, in Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] QB 644 at [666] Browne-Wilkinson LJ said that it was "quite impossible to reach a concluded view" on the existence, nature, and extent of any overlapping issues at that stage.

[72] This is a paraphrased version of ACG's summary of MGN's claims in the arbitration: ACG's submissions at [19]. MGN have a similar summary in their submissions at [32] and [34] although the second and third claims are grouped together.

[73] The claims made in the court proceeding are discussed below.

[74] This summary is based on the summary in MGN's submissions at [37].

[78] This is only one of a number of overlaps suggested by ACG. But it is illustrative of the problem.

[79] MGN's submissions, Annexure B at [4].

[80] In this respect, I accept MGN's submissions at [109].