Robot X Limited v Placer Robotics Pty Ltd & Anor

Medium Neutral Citation: Robot X Limited v Placer Robotics Pty Ltd & Anor [2026] NSWSC 1208

Hearing dates: 10 September 2026, further submissions received on 17 September 2026

Date of orders: 1 October 2026

Decision date: 01 October 2026

Jurisdiction: Equity

Before: Scruby J

Decision: (1) The defendants are granted leave to file an amended motion in the form served on 17 September 2026.
(2) The amended motion is adjourned for directions on 29 October 2026.
(3) The second and third defendants have liberty to apply in relation to the amended motion on 3 days’ notice.
(4) The plaintiff is granted leave to file an Amended Summons in the form that appears in Annexure DG-3 to the affidavit of Mr Gasic sworn 31 July 2026.
(5) The proceedings as between the plaintiff and the first defendant are stayed pursuant to s 7(2) of the International Arbitration Act 1974 (Cth).
(6) Upon the defendants giving the undertaking in the form delivered to the Court on 17 September 2026 and subject to any orders which may be made on any further hearing of the amended motion pursuant to the liberty granted in order (3), the proceedings against the second and third defendants are stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) pending the conclusion of any arbitration or litigation in Stockholm, Sweden, between the plaintiff and the first defendant.

Catchwords: INTERNATIONAL ARBITRATION — arbitration agreement — stay of proceedings — whether claims required to be stayed under s 7(2) International Arbitration Act 1974 (Cth) — claims in tort, contract, and for misleading or deceptive conduct — scope of arbitration clause — arbitrability — whether waiver deemed agreement “inoperable” under s 7(5) — non-parties to arbitration agreement — whether non-parties claiming “through or under” for purposes of s 7(4)
PRIVATE INTERNATIONAL LAW — jurisdiction — non-exercise of jurisdiction — foreign exclusive jurisdiction clauses — discretionary stay “as a matter of convenience” under s 67 Civil Procedure Act 2005 (NSW) — where not all parties to proceedings bound by clause — whether non-parties entitled to rely on exclusive jurisdiction clause

Legislation Cited: Competition and Consumer Act 2010 (Cth) Sch 2 - Australian Consumer Law, s 236
Civil Procedure Act 2005 (NSW), s 67
International Arbitration Act 1974 (Cth), ss 7, 7(2), 7(2)(b), 7(4), 7(5)
Uniform Civil Procedure Rules 2005 (NSW), r 12.11

Cases Cited: ACD Tridon v Tridon Australia [2002] NSWSC 896
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419
Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691
China Civil Engineering Construction Corporation South Pacific (Fiji) Ltd v Sinclair Brook Pty Ltd (2025) 427 ALR 648; [2025] NSWSC 960
Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm)
Clough Projects Australia Pty Ltd v Elecnor Australia Pty Ltd [2026] NSWCA 111
Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 238 ALR 457; [2006] FCAFC 192
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
Global Partners Fund Ltd v Babcock and Brown Ltd [2010] NSWCA 196
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 55 WAR 435; [2020] WASCA 77
Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 159 ALR 142; (1998) 90 FCR 1
HNOE Ltd v Angus & Julia Stone Pty Ltd [2024] NSWCA 271
Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
King River Digital Assets Opportunities SPC v Salemo [2023] NSWSC 510
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332; [1990] HCA 8
Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd (No 2) [2020] WASCA 201
Re Infinite Plus Pty Ltd (2017) 95 NSWLR 282; [2017] NSWSC 470
Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13
Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554

Category: Procedural rulings

Parties: Robot X Limited (Plaintiff)
Placer Robotics Pty Ltd (First Defendant)
Anton Vinokurov (Second Defendant)
Matthew Samuel Lipski (Third Defendant)

Representation: Counsel:
Mr Gasic (Plaintiff)
Mr d’Arville (Defendants)
Solicitors:
BlackBay Lawyers (Plaintiff)
Buchanan Rees (Defendants)

File Number(s): 2026/00237611

Publication restriction: Nil

JUDGMENT

1. This is an application brought by the defendants under r 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and/or s 7 of the International Arbitration Act 1974 (Cth) (the Act) to have the plaintiff’s proceedings dismissed or permanently stayed on the basis of an exclusive jurisdiction clause and/or an arbitration agreement.

2. The plaintiff, Robot X Limited (Robot X), is a company incorporated in Cyprus and is in the business of vending machine distribution. Mr Konstantinos Katsoulakis is the sole owner of Robot X. The first defendant, Placer Robotics Pty Ltd (Placer), is an Australian company that designs and manufactures a robotic machine called “the Pizzabot”. The Pizzabot prepares pizza and other food products. The second and third defendants are Mr Anton Vinokurov, a director and shareholder of Placer, and Mr Matthew Lipski, the managing director and also a shareholder of Placer.

3. On 2 February 2024, Placer and Mr Katsoulakis entered into an Exclusive Distribution Agreement (the EDA) pursuant to which Placer granted Mr Katsoulakis the exclusive right to market, promote, and sell the “Pizzabot” machine within defined geographical territories. On 1 May 2024, Placer, Mr Katsoulakis and Robot X executed an instrument by which Robot X became a party to the EDA. Mr Vinokurov and Mr Lipski are not parties to the EDA.

4. Clause 30 of the EDA is a dispute resolution clause, the terms of which are set out in full below. It provides that the agreement is governed by Swedish law. It contains both a provision that confers exclusive jurisdiction on the Courts of Sweden and a clause that entitles either party, after a stipulated negotiation and mediation process, to refer disputes arising under it to arbitration in Sweden.

5. Various disputes have arisen regarding the Pizzabot machine. Placer has made various claims against Robot X which, it would seem is common ground, will proceed to litigation or arbitration in Sweden if they cannot be resolved. The present proceedings were commenced by Robot X seeking urgent interlocutory relief in connection with a convention at which the Pizzabot was to be exhibited. The interlocutory dispute was resolved by the giving of undertakings, which themselves have given rise to further disputes. The defendants now seek a stay of the principal proceedings under s 67 of the Civil Procedure Act 2005 (NSW) (the CPA) or under s 7(2) of the Act.

6. For the reasons that follow, I have decided that I am required to stay the proceedings between Robot X and Placer pursuant to s 7(2) of the Act and refer them to arbitration. I have also decided, in the exercise of my discretion pursuant to s 67 of the CPA, to stay the proceedings against the second and third defendants pending the outcome of that arbitration or any litigation between Robot X and Placer in Sweden. The second and third defendants have given undertakings to the Court to submit to the determination by arbitration in Sweden of the claims Robot X makes against them (and Placer has undertaken to consent to this). In that circumstance, and where Robot X’s claims and the defences to them lack sufficient definition, I have found it neither necessary nor desirable to determine the question of whether the claims against the second and third defendants should be permanently stayed, either pursuant to s 7(2) of the Act or pursuant to s 67 of the CPA.

The EDA

7. The most important provision of the EDA for the purposes of the application before me is cl 30, which contains the exclusive jurisdiction and dispute resolution provisions that I have referred to. Before setting that out, it is convenient to set out four other provisions, which are relevant to understanding the nature of some of Robot X’s claims against the defendants.

8. Clause 10 of the EDA provides:

“10. SOFTWARE MAINTENANCE RESPONSIBILITY

The Supplier shall be responsible for providing periodic software updates and upgrades for the Machines. These updates are crucial for the efficient operation of the Machines, security enhancements, and the introduction of new features or improvements. The Supplier shall employ remote diagnostics capabilities to monitor the performance of the Machines and to provide remote troubleshooting and support. This includes, but is not limited to, software error rectification, configuration changes, and performance optimization.”

9. Clause 15.1 of the EDA provides:

“15.1. Promotional Support. The Supplier agrees to provide the Distributor with a comprehensive range of promotional materials including, but not limited to, descriptive literature, advertising materials, technical manuals, and sales promotional materials concerning the Supplier Machines. These materials will be provided in English and electronically in PDF format. The Distributor shall have the right, at its own expense, to translate and localize the promotional materials into the languages prevalent within the territories where global exclusivity or regional exclusivity applies. The Distributor is responsible for maintaining the integrity of the content and ensuring that translations accurately reflect the original English versions. The Distributor may customize the promotional materials to better suit the local markets within the territories where global exclusivity or regional exclusivity apply, provided such customization does not alter the fundamental nature of the Supplier Machines and is consistent with the Supplier's brand guidelines. The Distributor shall utilize the promotional materials solely for the purpose of marketing and selling the Supplier Machines within the territories where global exclusivity or regional exclusivity applies. The Distributor must ensure that all marketing and promotional activities adhere to the highest standards of accuracy, decency, and integrity.”

10. Clause 21.1 of the EDA provides:

“21.1. Provision of Installation and Operating Instructions. The Supplier shall provide comprehensive installation and operating instructions for all the Machines to the Distributor. These instructions shall be detailed, covering all aspects necessary for the effective and safe installation, operation, and maintenance of the Machines. The instructions will be provided in both printed and digital formats, including, but not limited to, detailed manuals, diagrams, and video tutorials. These resources shall be made available in English and shall be clear, concise, and easy to comprehend, ensuring that they are accessible to technical personnel of varying skill levels.”

11. The remainder of cl 21.1 sets out the content of the above obligation in more detail. Clause 21.6 provides:

“21.6. Compliance with Regulations and Standards. All installation and operating instructions must comply with relevant local, national, and international standards and regulations. The Supplier shall ensure that all instructions are consistent with industry best practices and adhere to the highest safety standards.”

12. Clauses 30.1 and 30.2 of the EDA outline the governing law and dispute resolution process as follows:

“30.1. Governing Law. This Agreement and the rights of all the Parties hereunder shall be governed by and construed in accordance with the laws of Sweden, exclusive of conflict or choice of law rules. Both Parties agree that the laws of Sweden, without regard to principles of conflict of laws, shall govern this Agreement and any dispute of any sort that might arise between all the Parties. The courts in Stockholm, Sweden, shall have exclusive jurisdiction over any of the disputes arising out of or in relation to or in connection with this Agreement.

30.2. Dispute Resolution. In the event of any dispute, controversy, or claim arising out of or in relation to or in connection with this Agreement or its breach, termination, or validity thereof, the disputing Parties shall follow the dispute resolution procedure set forth below:

30.2.1. Mutual Negotiations: The disputing Parties shall first engage in bona fide mutual and amicable negotiations with respect to the dispute, controversy, or claim to resolve the dispute informally.

30.2.2. Mediation: If the disputing Parties are unable to resolve the dispute informally within thirty (30) days of initiating mutual negotiations, then any of the disputing Party may initiate mediation proceedings by providing a written notice to the other disputing Party. The disputing Parties shall then engage in mediation within thirty (30) days from the date of receipt of the written notice using a mediator selected by mutual agreement or by a mediator appointed by a court of competent jurisdiction as per the Applicable Laws. The disputing Parties shall also mutually decide the rules and procedure for the mediation proceedings in writing unless institutional mediation is selected by the disputing Parties in writing, wherein the mediation shall be governed by the rules and procedure of the mutually selected mediation institution.

30.2.3. Arbitration**:** If the disputing Parties are unable to resolve the dispute through mediation within thirty (30) days from the date of initiating mediation, then any of the disputing Party may initiate arbitration by providing a written notice to the other disputing Party as per the Applicable Laws. The arbitration shall be conducted in accordance with the rules and procedures as may be mutually determined by the disputing Parties in writing. The seat and venue for arbitration shall be Stockholm, Sweden. The arbitration shall be conducted by a sole arbitrator mutually selected and appointed by disputing Parties. In case the disputing Parties fail to appoint an arbitrator, they may request the competent court to appoint a suitable arbitrator under the Applicable Laws. The arbitration shall be conducted in English language only. The decision of the arbitrator shall be final and binding on the disputing Parties. In the event that a Party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other disputing Party is entitled to recover the costs associated with enforcing or defending this award. This includes, but is not limited to, reasonable attorney's fees, court costs, and necessary disbursements in addition to any other relief to which the other disputing Party may be entitled.”

Events leading up to the commencement of proceedings

13. By at least March 2026, a dispute had arisen between Robot X and Placer in connection with the EDA. Central to this dispute was the question of whether the Pizzabot machines were compliant with EU requirements and whose responsibility under the EDA it was to ensure this. The parties attempted to engage in the negotiation and mediation process contemplated by cl 30. An email from Mr Katsoulakis of 23 March 2026 stated that negotiations had been ongoing for a few months by that time. A formal notice of mediation had been issued on behalf of Robot X on 21 March 2026, but Placer disputed its validity.

14. A “Notice of Breach and Invitation to Resolve Dispute” was issued on 28 March 2026 by Placer. The notice alleged a failure on the part of Robot X to comply with its distribution obligations, in part as a result of the compliance issue referred to above, and made a claim for loss of profits in the order of USD $14 million. The notice invoked cl 30.2.1 of the EDA and indicated that if the dispute was not resolved by negotiation, Placer was entitled to initiate mediation and that if this did not resolve the matter, Placer intended to proceed to arbitration in Sweden under cl 30.2.3. Amongst the relief foreshadowed is a declaration that Placer is entitled to make direct sales and interact with potential clients in the territories covered by the EDA.

15. A response to that notice was issued by Robot X on 29 March 2026. In it, Robot X denied the allegations in Placer’s notice and made plain that central to Robot X’s complaint was its claim that the Pizzabot machines supplied by Placer are “non-compliaint with applicable legal requirements” and therefore “qualify as ‘defective’ under applicable law”. Clause 2 of Robot X’s response stated:

“The fundamental issue, which Placer continues to evade, is that the Pizzabot machines do not comply with applicable law, including binding requirements under applicable European Union law. Placer has repeatedly failed, refused, and neglected to demonstrate compliance with such legal requirements. Compliance is not discretionary. It is a mandatory legal obligation and an express requirement under the EDA. This obligation rests exclusively on the manufacturer, namely Placer. Any attempt to shift this obligation onto Robot X is legally untenable and contractually impermissible.”

16. Clause 9 stated:

“Robot X had, prior to the issuance of the Notice of Breach, remained willing to engage and negotiate constructively toward resolution. However, the issuance of a baseless Notice of Breach, coupled with the continued repetition of previously addressed assertions, demonstrates that Placer is not acting in good faith to resolve the dispute. In these circumstances, Robot X will not continue informal negotiations unless Placer withdraws its claims in full and presents a bona fide settlement proposal. Failing this and in the meantime, the dispute shall proceed in accordance with the dispute resolution mechanism under the EDA, including mediation and, if necessary, arbitration.”

17. At least part of the dispute at this point concerned a potential customer of Robot X, referred to as “Ditsch”. In an email of 1 April 2026, Mr Katsoulakis recorded that he wished to continue commercial engagement with Ditsch but claimed that difficulties had arisen because the Pizzabot machines were said not to comply with EU law. Similar difficulties with other third parties are referred to in this and other email correspondence.

18. On 5 April 2026, Placer sent Robot X a pre-mediation letter proposing a framework for mediation pursuant to cl 30.2. Placer did not propose any particular date for the mediation, but suggested a timetable that would have had the parties providing submissions to an agreed mediator by 18 April 2026. Robot X responded confirming its agreement to proceed with mediation pursuant to the EDA but indicated that the timelines proposed by Placer were too lengthy and demanded that the mediation occur by 21 April 2026, being 30 days after the notice period which Robot X alleged had commenced on 21 March 2026. Robox X proposed the following “appropriate and mutually grounded agenda for mediation”:

“(a) Compliance with applicable law (including EU law) and CE certification for the Pizzabot machines;

(b) Certificate of insurance for manufacturer’s product liability;

(c) Manuals compliance to the applicable law (including EU law);

(d) V5 machines;

(e) Due and outstanding refund for ten (10) units (USD 617,000) by Placer;

(f) New shipping method;

(g) Internorga trade show matters; and

(h) Any other agenda as may be mutually agreed between the Parties.”

19. What exactly occurred next is not clear from the evidence, except that there has been no mediation and that the evidence does not reveal any further correspondence about resolving the above dispute. In a hearing before Hmelnitsky J on 6 June 2026, his Honour was told by Mr Vinoukuorov that Robot X “withdrew” from or “exited” a mediation which it was said had been supposed to occur on 20 April 2026.

20. The hearing referred to above was on a Saturday, and it was when Robot X commenced proceedings in this Court. It would seem that short service orders were made on the morning which brought the matter back before his Honour later that day. Leave was granted to file a Summons in Court. The need for urgent relief arose in connection with the International Dairy Deli Bakery Association Exhibition (the IDDBA Exhibition) that was to take place in Orlando the next day. Robot X wished to exhibit the Pizzabot machine at that Exhibition and sought orders requiring Placer through its directors to provide technical assistance in that regard. The interlocutory relief was disposed of by the giving of an inter partes undertaking by Mr Vinoukuoruov (in what capacity is now disputed) and by a cross-undertaking as to damages given to the Court by both Robot X and Mr Katsoulakis. I will return to the events of 6 June 2026 later in these reasons.

21. The IDDBA Exhibition proceeded on 7-10 June. There is now a dispute about whether the assistance (or lack thereof) that was provided to Robot X during the Exhibition was such that there was a breach of the inter partes undertaking given on 6 June. I will return to this also.

22. The proceedings returned to the duty list on 10 June 2026. On that day, the defendants were granted leave to file in Court the motion that is before me.

23. On 12 June 2026, Robot X’s solicitors sent a letter to Placer demanding the delivery of 10 Pizzabot machines that had been paid for. The attempted cancellation of this order was one of the issues (Issue 4) referred to in Placer’s Notice of Breach of 28 March 2026. The letter stated that if the machines were not made available within 7 days, Robot X would commence arbitral proceedings in Sweden under cl 30.2.3 of the EDA. The letter also foreshadowed the commencement of parallel proceedings in New South Wales. It relevantly stated:

“First, Robot X will commence arbitral proceedings in Stockholm under clause 30.2.3 of the Exclusive Distribution Agreement, seeking among other relief a final award for specific performance of Placer’s delivery obligations, together with damages for any and all damages and losses flowing from Placer’s failure to deliver compliant machines, including lost profits, reputation, goodwill, wasted expenditure, and consequential losses arising from or in relation to Robot X’s inability to demonstrate the Pizzabot V4 machines to existing and prospective customers.

Second, and in parallel, Robot X will make urgent application to the Supreme Court of New South Wales for interim measures directed to the Pizzabot V4 machines, which are located in New South Wales. That application will seek orders preserving the Pizzabot V4 machines and restraining Placer from dealing with, disposing of, encumbering, removing, or otherwise interfering with them pending the determination of the Stockholm arbitration. The Pizzabot V4 machines are bespoke units manufactured to Robot X’s order under an exclusive distribution agreement and are not available from any alternative source. The harm caused by their removal, disposal, or deterioration would be irreversible and damages would not be an adequate remedy. The NSW Supreme Court has jurisdiction to grant such relief in aid of foreign arbitral proceedings under the International Arbitration Act 1974 (Cth) and Articles 9 and 17J of the UNCITRAL Model Law, notwithstanding the Stockholm seat of the arbitration.”

24. On 18 June 2026, Placer, through its Swedish lawyers, responded to Robot X’s letter of 12 June, referring also to the Notice of Breach issued on 28 March. Placer’s letter stated that it was considering whether to issue a formal notice of termination and/or initiate legal proceedings. It invited a resolution of the dispute by termination of the EDA with mutual releases and reserved its right to “initiate arbitration and/or court proceedings” if that offer was not accepted. The letter referred to the arbitration clause in the EDA and stated that exclusive jurisdiction was conferred by it on an arbitral tribunal constituted in accordance with Swedish law. The letter maintained Placer’s objections to Robot X’s commencement of proceedings in this Court.

25. On 25 June 2026, a Swedish law firm engaged by Robot X sent a holding response to Placer’s letter of 18 June 2026. A holding response was sent also on 1 July 2026 by Robot X’s Australian solicitors to Placer’s Swedish solicitors. So far as the evidence reveals, there has not been further correspondence.

26. On 31 July 2026, Robot X served its evidence on Placer’s motion. It included a proposed amended summons. Most of Robot X’s evidence was directed at one of the proposed amendments, which is the introduction of the claim for breach of the inter partes undertaking referred to above. On the evidence before me, that was the first occasion on which such a claim was made.

The Summons, the Undertaking, and the Proposed Amended Summons

27. Other than relief in relation to short service, the Summons filed in Court before Hmelnitsky J by Robot X seeks the following interlocutory relief:

“1 Pursuant to s 23 of the Supreme Court Act 1970 (NSW) and the inherent jurisdiction of the Court, the First Defendant, by its directors Anton Vinokurov, the Second Defendant, and Matthew Samuel Lipski, the Third Defendant. and by any other officer, employee, agent or person acting on its behalf, or under its direction, be ordered forthwith to:

a. provide to the Plaintiff’s representative at the IDDBA Exhibition, Orange County Convention Center, Orlando, Florida, United States of America, working software access credentials, including a functioning operator PIN and all other login credentials required, for the Pizzabot V4 machine bearing serial number 24010010;

b. provide any software update required to restore the machine to operational condition, whether by remote installation, by arranging for a suitably qualified person at the Exhibition location at Placer’s expense, or by any other means within the Defendant’s power and control; and

c. take all steps otherwise necessary to restore the machine to a fully operational state for the purposes of exhibition and demonstration at the IDDBA Exhibition.

2 The First Defendant, by itself, its directors Anton Vinokurov, the Second Defendant, and Matthew Samuel Lipski, the Third Defendant, and by any other officer, employee, agent or person acting on its behalf or under its direction, be restrained, until further order, from:

a. remotely accessing, modifying, disabling, locking, altering or otherwise interfering with the software, firmware, operating system, access credentials or any other aspect of the operation of the Pizzabot V4 machine bearing serial number 24010010 currently in the Plaintiff’s possession at the IDDBA Exhibition;

b. taking any steps, whether directly or through any third party, to prevent, obstruct or impede the Plaintiff’s representative from operating the machine for exhibition and demonstration purposes at the IDDBA Exhibition in accordance with the conditions confirmed in the Plaintiff’s correspondence of 22 May 2026 and 27 May 2026, namely no sale, no commercial deployment, no promotion, and strict compliance with applicable law; and

c. communicating, whether directly or indirectly, with Brezelbackerei Ditsch GmbH, IDDBA, the Orange County Convention Center, OSHA, any law enforcement authority, or any other third party, for the purpose of disrupting or interfering with the Plaintiff’s participation in the IDDBA Exhibition.”

28. Ignoring orders for interest and costs, the final relief sought in the Summons is as follows:

“9 A permanent injunction restraining the Defendants from interfering with the Plaintiff’s contractual and business relations with Brezelbackerei Ditsch GmbH, or with any other customer or prospective customer of the Plaintiff, by making false or misleading representations concerning the safety, legality, or commercial readiness of the Pizzabot V4 machine, or by threatening third parties with regulatory escalation or law enforcement action for the purpose of causing them to disengage from the Plaintiff.

10 Damages for tortious interference with the Plaintiff’s contractual and business relations with Brezelbackerei Ditsch GmbH and other third parties, including loss of the commercial opportunity represented by the IDDBA Exhibition and the FEMSA Group’s evaluation of the Machine for deployment across its convenience store network.

11 Damages for breach of the Agreement, including loss suffered by reason of the First Defendant’s failure to provide remote technical support and software access in accordance with its obligations under the Agreement.”

29. The orders made by Hmelnitsky J as duty judge on 6 June 2026 were as follows:

“1. Note that Robot X and Mr Katsoulakis give an undertaking to the Court as to damages including any loss or damage flowing from the operation or attempted operation of the Pizzabot at the IDDBA Exhibition at the Orange County Convention Centre, Orlando, Florida USA between 7 to 9 June 2026 (the IDDBA Exhibition).

2. Note that on the basis of the undertakings as to damages, the defendants undertake to Robot X to provide reasonable remote IT assistance to log in and operate the Pizzabot at the IDDBA Exhibition.

3. List the summons for directions before the Duty Judge in Equity on 10AM on 10 June 2026.”

30. The transcript of the hearing before Hmelnitsky J was in evidence before me and I was taken through it by both parties in submissions. It is convenient to note the following matters.

31. First, the third defendant, Mr Lipski, did not appear at all. Mr Vinoukuorov appeared, at least in his personal capacity. I would infer from the following passage that he was granted leave to represent Placer also:

“HIS HONOUR: You are Mr?

SECOND DEFENDANT: Yes, your Honour, Mr Vinokurov.

HIS HONOUR: Mr Vinokurov, yes.

SECOND DEFENDANT: Yes, I am the director of Placer Robotics.

HIS HONOUR: And what about Mr Lipski?

SECOND DEFENDANT: Mr Lipski couldn't come at this short notice, but he agrees with my position that represent Placer Robotics as a director.

HIS HONOUR: Thanks, Mr Vinokurov.”

32. Secondly, at the beginning and end of the hearing of 6 June 2026, Mr Vinoukurov asserted Robot X’s entitlement to rely on the exclusive jurisdiction and arbitration clauses under the EDA. Because Robot X takes a point about waiver and submission to jurisdiction, it is necessary to set out those parts of the transcript in full:

“SECOND DEFENDANT: So, if I may confirm, first of all, the jurisdiction under our exclusive distribution agreement is Sweden and Stockholm--

HIS HONOUR: So, that's the law, that's the law of the contract, but this is a party that's in this jurisdiction and the breach seems to have happened in this jurisdiction, so I have got an ability to deal with the matter. If you want to tell me that Swedish law is different, then you can tell me that Swedish law is different, but I have got a power to make an injunction against you personally.

SECOND DEFENDANT: Yes, I am not saying that, I am just noting that I am not sure whether it was noted or not by the plaintiff, as I am saying, we were only put on notice two and a half hours ago, so I wanted to just make it clear that we actually have a dispute ongoing, we attempted to mediate with Robot X, and unfortunately, Robot X withdrew from mediation. We did that under the rules of the agreement. It is just to give a picture of the dispute. The dispute is ongoing, there is a commercial dispute, yes.

HIS HONOUR: I understand that, and I think Mr Gasic was upfront about that, I asked him about it and he said there is a dispute, but the immediate dispute, and really the only thing I care about now is whether or not the plaintiff should be entitled to show the machine tomorrow in Orlando, that’s it. I am not dealing with the balance of the dispute unless there is something about the balance of the dispute that is incredibly important for me to understand. Really, the - I am really just concerned to understand why the plaintiff, who is the exclusive distributor of this equipment, for the mutual benefit of all the parties, shouldn't be allowed to show it at a trade fair tomorrow.

…

HIS HONOUR: So, I am just going to list the matter again before a judge next week. It might be that the whole thing has gone away and you can tell the judge that the whole thing has gone away. If there is still a dispute, then you can tell the judge what the issues are and you can work it out from there.

SECOND DEFENDANT: Your Honour, can you explain why is the plaintiff not using the Swedish court for this since we have Swedish jurisdiction in the agreement, we just do not understand it, I don't have a legal representative--

HIS HONOUR: No, you may well be right about that, Mr Vinokurov. So, this immediate dispute about getting access for the exhibition is a matter that is appropriate to bring in this court.

SECOND DEFENDANT: We understand that.

HIS HONOUR: Okay. To the extent there is a continuing dispute beyond the exhibition, then you may well be right that that is not an appropriate matter for this court. So, why don't you just wait and see whether or not there is still a dispute in this court after the weekend, and if there is, and if Mr Gasic still wants to and his client still want to bring proceedings in this court then I think it would be very much in your interest to get a solicitor involved and they may well take the view that any other dispute really belongs in the mediation in Sweden. So, see how you go.

SECOND DEFENDANT: Yes, from what I understand, we are already moving to arbitration because mediation was refused, but what's the timeframe that we have to obtain a legal representative in Australia?

HIS HONOUR: Well, you'll have time. It sounds like if - look, you'll have time to do that.”

33. Thirdly, as I have mentioned, an inter partes undertaking was given by Mr Vinoukurov (the Undertaking). The Undertaking as noted by the Court refers to it as having been given by “the defendants”. Robot X asserts that it was given by Mr Vinoukurov on behalf of all three defendants. The defendants say it was given only on behalf of Placer, and that the reference to “defendants” in the Court’s notation is a reference to it being given by the second defendant on behalf of the first. I have been unable to understand how it could be possible for the Undertaking to have been given by Mr Vinoukurov on behalf of the third defendant. Otherwise, there are indications in the transcript that support the positions taken by both sides. I would be inclined to the view that the defendants’ position is correct but I do not consider that it is necessary or desirable for me to make a finding to resolve this issue: it is for later determination in any substantive proceedings.

34. Fourthly, it is common ground that the Undertaking was given inter partes, and not to the Court. Inter partes undertakings will usually give rise to contractual obligations because consideration will be given for them. The question of whether the Undertaking given by Mr Vinoukurov were was of this nature is for later determination.

35. Fifthly*,* there was no attention given before Hmelnitsky J to the question of to what extent the Undertaking overlapped with the obligations of Placer under the EDA or indeed to its precise relationship with the claims for interlocutory or final relief. His Honour was not taken to cl 21.1 of the EDA, which would appear to be the clause that contains the obligation that Robot X wanted performed in connection with the IDDBA Exhibition. The content of the Undertaking at the very least overlaps with this clause and on one view adds nothing to it. It is not necessary to make any finding about this.

36. As I have mentioned, the IDDBA Exhibition proceeded on 7-10 June. There was evidence before me from Robot X about what occurred during that period. The evidence was read in support of its application to amend the Summons to include a claim for damages for breach of the Undertaking. It is not necessary to consider that evidence in any detail or make findings about it, save to mention that much of its focus concerns dealings with representatives of Ditsch, the potential customer of Robot X referred to earlier in these reasons. Otherwise, it is sufficient to note that Robot X alleges that the assistance given to it by Mr Vinoukurov (in whatever capacity) fell short of “reasonable remote IT assistance to log in and operate the Pizzabot at the IDDBA Exhibition” within the meaning of the Undertaking, and that this resulted in damage to Robot X, including in the form of the loss of Ditsch’s custom.

37. An Amended Summons was served on 31 July 2026. The proposed amendments withdraw all of Robot X’s claims for interlocutory relief and replace them with the following:

“8A. An order pursuant to UCPR r 6.6 that those proceedings continue on pleadings, and that the Plaintiff have leave to file and serve a Statement of Claim within 14 days of the making of this order.

8B Pursuant to s 23 of the Supreme Court Act 1970 (NSW) and the inherent jurisdiction of the Court, until final determination of these proceedings or further order, each of the First Defendant, the Second Defendant and the Third Defendant be restrained from remotely accessing, modifying, disabling, locking, altering or otherwise interfering with the software, firmware. operating system, access credentials. or the remote dashboard function of any unit of the Pizzabot V4 machine in the possession or control of the Plaintiff.”

38. No attention was given to prayer 8B in argument by either side. There was no suggestion that there was any relief of the kind it seeks that is urgently required from this Court. In those circumstances, it is not necessary to consider it further.

39. As to final relief, the Amended Summons is in the following form:

“B. Final Relief

9 A permanent injunction restraining the Defendants from interfering with the Plaintiff's contractual and business relations with Brezelbackerei Ditsch GmbH Compass Group. Go To Foods, FEMSA Group, or with any other customer or prospective customer of the Plaintiff, by making false or misleading representations concerning the safety, legality, or commercial readiness of the Pizzabot V4 machine, or by threatening third parties with regulatory escalation or law enforcement action for the purpose of causing them to disengage from the Plaintiff.

9A. A declaration that each of the Defendants has breached the undertaking recorded in the orders of the Honourable Justice Hmelnitsky made on 6 June 2026 in those proceedings. being an undertaking to Robot X Limited to provide reasonable remote IT assistance to log in and operate the Pizzabot V4 machine bearing serial number 24010010 at the IDDBA exhibition held at the Orange County Convention Centre, Orlando, Florida, USA between 7 and 9 June 2026 (the ‘Undertaking’).

9B. Damages for breach of the Undertaking.

9C. Damages pursuant to s 236 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth}) for contravention of s 18 of the Australian Consumer Law by each of the Defendants.

9D. Damages for injurious falsehood.

10 Damages for tortious interference with the Plaintiff's contractual and business relations with Brezelbackerei Ditsch GmbH, Compass Group. GoTo Foods and other third parties, including loss of the commercial opportunity represented by the IDDBA Exhibition and the FEMSA Group's evaluation of the Machine for deployment across its convenience store network.

11 Damages foer breach of the Agreement, including loss suffered by reason of the First Defendant’s failure to provide remote technical support and software access in accordance with its obligations under the Agreement. Any claim for breach of the exclusive distribution agreement between the Plaintiff and the First Defendant is not pressed in these proceedings and is reserved to the parties’ rights under the dispute-resolution provisions of that agreement.

12 Interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on any damages awarded.

13 Costs of these proceedings on an indemnity basis, or in the alternative on the ordinary basis.

14 Such further or other orders as the Court thinks fit.”

40. No formal application to amend was made but the defendants took no point about this. Other than the introduction of the claim for damages for breach of the Undertaking, there was no evidence or submission before me by Robot X to explain prayers 9B, 9C or 9D. Such claims for damages or compensation ordinarily should be brought by way of a Statement of Claim, or at least have their subject matter identified in a supporting affidavit. The defendants did not take any point about this either. Mr d’Arville, who appeared for the defendants in the motion before me, said in submissions that these proposed prayers for relief were part of the same subject matter as the existing claim for relief in prayer 9. This was an inference which, in his submission, was to be drawn from the Amended Summons itself. This position was not contradicted by Mr Gasic who appeared for Robot X. I will therefore proceed on the basis that it is correct – that is, that proposed prayers 9C and 9D seek relief based on substantially the same factual matters that are said to support the relief in paragraphs 9 and 10.

41. The Amended Summons thus involves three categories of claim:

42. Claims for compensation under s 236 of the Competition and Consumer Act 2010 (Cth) Sch 2 (ACL) and for tortious damages based on allegations about the defendants’ dealings with Robot X’s clients or potential clients in relation to the Pizzabot machine.

43. Contractual claims for breach of the Undertaking.

44. Contractual claims for breach of the EDA, which, by the proposed amendments to prayer 11 of the Summons, Robot X accepts should not be dealt with in these proceedings but rather pursuant to the dispute resolution process set out in cl 30.

45. The precise relationship between the claims in categories (1) and (3) and the claims that were the subject of the correspondence that I have referred to between the parties prior to the commencement of these proceedings was not the subject of any submissions before me. At the very least, these categories appear to involve the central issue raised in that correspondence: whether the Pizzabot machine complied with EU certification requirements and whose responsibility it was under the EDA to ensure that. Further, the tortious and ACL claims appear to raise the same issue as is raised by Placer’s Notice of Breach dated 28 March 2026 to which I have referred above. That is, whether, notwithstanding the terms of the exclusive distribution provisions in the EDA, Placer is entitled to make direct sales and interact with potential customers in the territories covered by the EDA.

The Defendants’ Motion and Amended Motion

43. The defendants’ Motion sought the following orders:

“1 That, pursuant to UCPR 12.11:

(a) the proceedings are dismissed;

(b) alternatively, the Plaintiff’s claim against the Defendants is permanently stayed.

2 The Plaintiff pay the Defendants' costs of the proceedings.

3 Such further or other orders as the Court thinks fit.”

44. It was apparent from the defendants’ written and oral submissions that their claims were made both under s 67 of the CPA and under s 7 of the Act. Leave was granted without opposition to amend the Motion to reflect this. After the hearing on 17 September 2026, an Amended Notice of Motion was filed in the following form:

“1 That, pursuant to s67 of the Civil Procedure Act 2005 (NSW) and UCPR 12.11:

(a) the proceedings are dismissed;

(b) alternatively, the Plaintiff’s claim against the Defendants is permanently stayed.

1A. In the alternative to order 1, that, pursuant to section 7(2) of the International Arbitration Act 1974 (Cth), the proceedings be stayed in favour of arbitration in Sweden.

2 The Plaintiff pay the Defendants’ costs of the proceedings.

3 Such further or other orders as the Court thinks fit.”

45. The defendants’ basic submission is that the claims in the Amended Summons are brought in breach of the exclusive jurisdiction agreement and/or the arbitration agreement in cl 30 of the EDA and consequently should be stayed under s 67 of the CPA or by the operation of s 7(2) of the Act. The defendants also made submissions in the further alternative that parts of the proceedings could be stayed pursuant to s 7(2) and other parts pursuant to s 67. As part of this submission, at the hearing, the second and third defendants proffered an undertaking to the Court that they would consent to being joined to any arbitration in Sweden pursuant to cl 30 in connection with the claims now made against them. After the hearing concluded and following input from Robot X, those undertakings were slightly revised and added to them was an undertaking from Placer that it would consent to the joinder of the second and third defendants to any such arbitration. The precise form in which those undertakings are now offered appears in a document annexed to these reasons.

46. Robot X, by its proposed amendment to paragraph 11 of the Summons, accepted that its contractual claims for breach of the EDA should be submitted to arbitration. It is not clear to what extent, if any, Robot X takes issue with the arbitration in Sweden of the claims made in pre-litigation correspondence pursuant to the dispute resolution clause that I have referred to above. As I have indicated, the question of what overlap there is between these claims and the claims in the Amended Summons was not the subject of attention before me.

47. What is clear is that Robot X resists the orders sought by the defendants and wishes to pursue the claims in the Amended Summons in this Court. Robot X submitted that the exclusive jurisdiction and arbitration clauses applied only to claims for breach of the EDA, and therefore that its claims in tort and under the ACL should be permitted to proceed in this Court. The claims for breach of the Undertaking were said to be in the same category because, although contractual, they were not claims for breach of the EDA itself. Robot X also submitted that the exclusive jurisdiction and arbitration clauses had no application to the claims against the second and third defendants because these defendants were not parties to the EDA. Robot X also submitted that the defendants waived any entitlement to rely on either the exclusive jurisdiction or arbitration clauses because of their participation in the hearing before Hmelnitsky J and by giving the Undertaking. There was also a suggestion that the ACL claims in the Amended Summons were not arbitrable.

48. Notwithstanding the order of the prayers in the Amended Motion, I will first consider whether I should grant a stay under s 7(2) of the Act. I consider this first because if s 7(2) is enlivened, it has a mandatory effect, as opposed to the discretionary nature of the power conferred by s 67 of the CPA. Even though such an order is sought “in the alternative” to a stay under s 67 of the CPA, I consider that this is sufficient to enliven the obligation under s 7(2) to stay proceedings “on the application of a party” if the criteria in s 7 are otherwise satisfied.

Section 7 of the International Arbitration Act

49. Section 7 of the Act provides as follows:

“7 Enforcement of foreign arbitration agreements

(1) Where:

(a) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a Convention country;

(b) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a country not being Australia or a Convention country, and a party to the agreement is Australia or a State or a person who was, at the time when the agreement was made, domiciled or ordinarily resident in Australia;

(c) a party to an arbitration agreement is the Government of a Convention country or of part of a Convention country or the Government of a territory of a Convention country, being a territory to which the Convention extends; or

(d) a party to an arbitration agreement is a person who was, at the time when the agreement was made, domiciled or ordinarily resident in a country that is a Convention country;

this section applies to the agreement.

(2) Subject to this Part, where:

(a) proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and

(b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;

on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter.

(3) Where a court makes an order under subsection (2), it may, for the purpose of preserving the rights of the parties, make such interim or supplementary orders as it thinks fit in relation to any property that is the subject of the matter to which the first‑mentioned order relates.

(4) For the purposes of subsections (2) and (3), a reference to a party includes a reference to a person claiming through or under a party.

(5) A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed. It is clear from the terms of s 7(2) that where a matter is identified in proceedings which falls within the scope of an arbitration clause.”

50. There was no dispute before me that the requirements in s 7(1) were satisfied. It was common ground also that the filing of the Amended Summons amounted to the commencement of proceedings by one party to an arbitration agreement against another party to that agreement, such that s 7(2)(a) of the Act was satisfied.

51. Robot X contended that the proceedings do not, within the meaning of s 7(2)(b), “involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration”. The contention is based on the submissions I have referred to above to the effect that the claims in the Amended Summons do not fall within cl 30.2 as properly construed.

52. Clause 30.2 is a dispute resolution clause. Its proper interpretation is a question for Swedish law although, there being no evidence of that, both parties approached the matter on the basis that it was to be determined under the law of New South Wales. Under the law of New South Wales, the general principles to be applied in interpreting such clauses are well established and were not in dispute. They were summarised, by reference to earlier authority, by Bell P in Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82 at [53]-[67]; and see also at [119], [128]-[129] (Meagher JA). Such clauses are to be interpreted like any other contract – that is, by having regard to their text, surrounding circumstances, purpose and object. However, generally (and, I accept, in the present case), these matters indicate that broad language in a dispute resolution clause should be given ample effect. The reason for this is expressed in the oft-quoted reasons of Gleeson CJ in Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 (Francis), where his Honour said (at 165):

“When parties to a commercial contract agree, at the time of making the contract, and before any disputes have yet arisen, to refer to arbitration any dispute or difference arising out of the agreement, their agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument.”

53. These principles provide no warrant for reading down cl 30.2 in the way for which Robot X contends. It is, in my judgment, clear that all of the three categories of claim in the Amended Summons are claims “arising out of or in relation to or in connection with this Agreement or its breach”. Robot X’s submission that only claims for damages for breach of the EDA fall within the scope of the arbitration agreement must be wrong in light of the words “or its breach”: these words make it plain that claims can fall within the clause even if not claims for breach of the EDA. The relevant nexus between the clause and a claim is not confined to a claim for breach of contract but extends to a claim that is otherwise “arising out of”, “in relation to” or “connected with” the EDA itself. The authorities to which I have referred indicate that connecting words of this kind are to be given ample effect.

54. Once this submission is rejected there is no basis for excluding the other claims in the Amended Summons from the operation of the arbitration agreement, at least in so far as they are claims against Placer. The fact that the Undertaking is alleged to have given rise to a separate contractual relationship does not take it out of the wide language of cl 30.2. Robot X only has rights to deal with the Pizzabot machine because of the EDA. The Undertaking was given to avoid interlocutory injunctive relief to restrain alleged breaches of Placer’s obligations under the EDA. It was given to provide assistance to Robot X in exhibiting the Pizzabot machine in the exercise of its rights under the EDA. Any claims for breach of the Undertaking are therefore “in relation to or in connection with” the EDA. So also are the claims in tort. These claims are all “in relation to or in connection with” the EDA because they concern the parties’ dealings with potential clients regarding the Pizzabot machine. The EDA is an exclusive distribution agreement and a self-evidently significant commercial purpose of it is to find third party customers prepared to use and pay for the machine. Assertions that false statements were made to such third parties regarding the machine or Placer’s obligations in relation to it are well within the wide words of cl 30.2. The ACL claims are in no different position: see Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 159 ALR 142; (1998) 90 FCR 1 at 20-2 (Hi Fert) and the cases there cited.

55. The words “is capable of settlement by arbitration” in s 7(2)(b) invoke the concept of arbitrability (see Clough Projects Australia Pty Ltd v Elecnor Australia Pty Ltd [2026] NSWCA 111 at [56] (Clough)). If the “matter” involved in the proceedings is not arbitrable, then the proceedings, to the extent that they involve its determination, cannot be stayed pursuant to s 7(2). I do not understand there to be any dispute that the tortious claims in the Amended Summons are arbitrable. To the extent that it was submitted that the claims for breach of the Undertaking were not arbitrable because the Undertaking was given in Court, I disagree: again, the Undertaking was given and not to the Court. As I have explained, it is a contractual claim and like other contractual claims, it is arbitrable.

“… stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter.”

58. The reference to “that matter” is to the “matter” that is the subject of s 7(2)(b). The authorities establish that this “matter” is confined to disputes between “parties” to the arbitration agreement: see Hancock Prospecti**ng Pty Ltd v DFD Rhodes Pty Ltd (2020) 55 WAR 435; [2020] WASCA 77 (Hancock Prospecting) at [139]-[142].

59. The second and third defendants are not signatories to the EDA, but each claims to be a “party” within the meaning of s 7(4).

60. Before considering the s 7(4) issue, however, it is important to recognise that the proceedings as between parties to an arbitration agreement and the “matter” that is the subject of a stay under s 7(2) can extend to the question of whether the arbitration agreement regulates their rights in relation to claims they might have against non-parties. This can be so even if the “matter” does not include the actual claims against those non-parties. This conceptual distinction is demonstrated by one aspect of the decision of the Full Federal Court in Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 (Hancock Prospecting v Rinehart). One question in that case was whether two parties to a Deed containing an arbitration agreement (Mr Hancock and Ms Rinehart) could bring claims in court against an entity not a party to the arbitration agreement (HDIO). Other parties to the Deed (Mrs Rinehart and HPPL) asserted that the Deed prevented any such claims from being brought (at all – that is, either by way of arbitration or in court). The Full Court held that HDIO was not a “party” to the Deed for the purposes of s 2 of the Commercial Arbitration Act 2010 (NSW) (the Commercial Arbitration Act). It went on however to find that the dispute between the parties to the arbitration agreement as to whether the Deed permitted claims to be brought against HDIO (as distinct from the actual claims made against HDIO) fell within the terms of the arbitration agreement and so formed part of the “matter” that was referred to arbitration pursuant to s 8 of the Commercial Arbitration Act (see at [327]-[331]). The Court went on, in the exercise of its discretion to control its own proceedings, to stay the actual claims against HDIO pending the conclusion of the arbitration (see at [336]). The High Court overturned the Full Court’s decision that HDIO was not a “party”, but the High Court’s decision does not call into question the conceptual validity of the distinction drawn by the Full Court (and see also Hancock Prospecting at [143]-[162]).

61. The above distinction is relevant in the present circumstances. Part of the proceedings as presently constituted involves a dispute about whether Placer is entitled to insist that Robot X brings its claims against the directors in Sweden (either in Court or in arbitration). Placer claims to have this entitlement by virtue of cl 30.2 and Robot X disputes it. That dispute is a “matter” that forms part of these proceedings and is required to be stayed pursuant to s 7(2). Robot X’s actual claims against the second and third defendants, however, are not part of a matter that can be stayed pursuant to s 7(2) unless they can establish that they are a “party” to the arbitration agreement by reason of being a “person claiming through or under” Placer for the purposes of s 7(4). It is convenient to turn to that question.

Section 7(4) of the Act

62. The High Court considered s 7(4) in Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332; [1990] HCA 8 (Tanning). One question in that case was whether a liquidator was acting “through or under” a company in liquidation when he rejected a proof of debt on the basis that the company was not liable for it (as distinct from rejecting it on some ground only available to a liquidator). The Court held that s 7(4) applied. Brennan and Dawson JJ said at 342:

“The meaning of the phrase ‘through or under a party’ must be ascertained not by reference to authority but by reference to the text and context of s 7(4).

In the first place, as sub-s. (2) speaks of both parties to an arbitration agreement, a person who claims through or under a party may be either a person seeking to enforce or a person seeking to resist the enforcement of an alleged contractual right. The subject of the claim may be either a cause of action or a ground of defence. Next, the prepositions ‘through’ *and ‘*under’ convey the notion of a derivative cause of action or ground of defence, that is to say, a cause of action or ground of defence derived from the party. In other words, an essential element of the cause of action or defence must be or must have been vested in or exercisable by the party before the person claiming through or under the party can rely on the cause of action or ground of defence.” (Emphasis added).

63. Dealing with the same question, Deane and Gaudron JJ said at 353:

“Section 7(2) of the Act is concerned with ‘proceedings [which] involve the determination of a matter … capable of settlement by arbitration’. Its operation is thus not confined to proceedings in which the parties seek the same relief as might have been sought in arbitration proceedings. Because s. 7(2) has this wider operation, the question whether a person is claiming through or under a party to the arbitration agreement is necessarily to be answered by reference to the subject matter in controversy rather than the formal nature of the proceedings or the precise legal character of the person initiating or defending the proceedings.”

64. Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 (Rinehart) involved a claim against an assignee of mining tenements. It was alleged that the assignment was taken with knowledge that the tenements were trust property and assigned in breach of trust. The assignee contended that there was no breach of trust or that, if there was, the assignor had been absolved of responsibility by operation of a deed of settlement. A majority of the High Court held that the assignee was claiming “through or under” the assignor for the purposes of s 7(4), stating that by these defences the assignee took “its stand upon a ground which is available to the assignor and stands in the same position vis-à-vis the claimant as the assignor”: at [73]. The majority also said at [68]:

“[I]t is unnecessary that the issues that the defence puts in controversy in the proceedings be limited to the matter capable of settlement by arbitration. The two need not be co-extensive. It is sufficient that the defence puts in issue, among other things, some right or liability which is susceptible of settlement under the arbitration agreement as a discrete controversy…”

65. The defendants referred to King River Digital Assets Opportunities SPC v Salemo [2023] NSWSC 510 (King River), which involved a similar question arising under s 2 of Commercial Arbitration Act. The plaintiff in that case, King River, was a party to an arbitration agreement with a company referred to as Trigon. The plaintiff sought to recover funds from a director of Trigon, Mr Salerno, on the basis that he aided, abetted, counselled or procured Trigon’s alleged contravention of the ACL. Rees J found that Mr Salerno’s defence involved him claiming “through or under” Trigon because it involved him denying that Trigon had contravened the ACL.

66. The defendants also referred to China Civil Engineering Construction Corporation South Pacific (Fiji) Ltd v Sinclair Brook Pty Ltd (2025) 427 ALR 648; [2025] NSWSC 960, which concerned s 7 of the Act. In that case, the plaintiff brought a claim against a company called Carpenters under a construction contract that contained an arbitration clause. The plaintiff also brought a claim against the superintendent (Sinclair) who was appointed under the construction contract and an employee of the superintendent (Tucker). Hammerschlag J found that Sinclair and Tucker were claiming “through or under” Carpenters in defending these claims, in circumstances, as detailed at [81]:

“(1) Sinclair acted as Carpenters’ agent in doing things about which China Civil complains. Tucker was an employee of Sinclair and the person through whose human agency Sinclair's acts complained of were done. In the case of Sinclair, there is an averment that when exercising its functions as Superintendent, it was acting as the agent of Carpenters. In the case of Tucker there is an averment that he was a project manager employed by Sinclair and had care and responsibility for making decisions in relation to the supervision, management and effective control of the performance of the Contract;

(2) Sinclair owed China Civil a duty of care to take reasonable steps to prevent the occurrence of reasonably foreseeable risks of harm and to exercise care, skill and diligence to prevent the manifestation of unnecessary risks and it breached that duty of care (amongst others) in giving directions pursuant to the Contract;

(3) Tucker owed a ‘personal duty’ to China Civil coterminous with that owed by Sinclair and he breached it in the same way as Sinclair did;

(4) Carpenters repudiated the Contract and wrongfully purported to terminate it; and

(5) heads of loss and damage suffered by China Civil by the breaches complained of (as particularised in the Statement of Claim) include:

‘Termination of the Contract

Loss of income during suspension of work

Exposure to a claim of damages by Carpenters’**.”

67. His Honour pointed out that Sinclair and Tucker had a direct interest in resisting the plaintiff’s claims that the first defendant acted unlawfully. Sinclair and Tucker were held to be parties sufficiently interested in the proposition that Carpenters validly terminated the contract. Therefore, Sinclair and Tucker were held to be claiming through or under Carpenters, and the proceedings against them were stayed under s 7(2).

68. The application of the principles in these cases to the claims in the Amended Summons poses considerable difficulty because what is required is a close examination of the nature of the plaintiff’s claims and the defences to them with a view to ascertaining whether the second and third defendants’ defences put in issue some right or entitlement available to Placer itself. The bare form of the prayers for relief in the Amended Summons, and the absence of any description of the basis of those claims, or of proposed defences to them, does not enable this to be done. The Amended Summons makes claims against “the defendants” without any distinction between them. A plaintiff who makes a claim against a corporate entity might also make what are commonly called accessorial claims against one or more of its directors in relation to the same conduct. In such a case, a director could defend the claim “through or under” the company by denying that the company had any principal liability: the director is in substance saying: “the company didn’t do it and so I am not liable”. This was what occurred in King River. In contrast, a plaintiff might make claims in the alternative against a company and one or more of its directors where there is a question as to whether the conduct of the director is attributable to the company. A director who defends such a claim on the ground that the conduct is not to be attributed to him or her is not saying “the company didn’t do it” or “the company is not liable and therefore neither am I” – but rather only: “it wasn’t me”. The availability of s 7(4) to the director in this scenario is unclear and would depend on a close examination of the facts alleged to give rise to the claims and the claims themselves. As I have said, it is not possible to do this on the material before me.

69. One possible way of dealing with this lack of clarity would be to dismiss the second and third defendants’ application for a stay under s 7(2). There is some doubt about the precise nature of the standard to be applied in the discharge of an applicant’s burden of proof on a stay application of this kind (see, for example, Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd (No 2) [2020] WASCA 201 at [77]-[79]; Hancock Prospecting v Rinehart at [141]-[142]). I did not receive submissions on this issue and do not consider that it is necessary to decide it because in my view dismissal would not be an appropriate response to the absence of detail about the parties’ claims. The proceedings should ordinarily have been commenced by statement of claim, but the urgency with which the matter came on precluded that. The defendants at the hearing before me took a commendably pragmatic approach in not objecting to the proposed amendments to the Amended Summons on the basis that they had not been pleaded out as the rules would require. Prayer 8A of the interlocutory orders now sought correctly acknowledges that the plaintiff’s claims will have to be pleaded.

Waiver and s 7(5) of the Act

71. Robot X submits that there has been a waiver of any right to rely on cl 30 of the EDA or a submission to this Court’s jurisdiction to deal with the substantive claims made against the defendants. Robot X’s submissions were made primarily in the context of invoking the Court’s discretion not to enforce the exclusive jurisdiction clause (cf. Global Partners Fund Ltd v Babcock and Brown Ltd [2010] NSWCA 196 (Global Partners) at [88]-[89]). However, a related argument also arises in the context of s 7(5) of the Act. That provision prevents the Court from making an order under s 7(2) if it is found that the “arbitration agreement” was “inoperative”. Robot X submits I should so find that the arbitration agreement here is “inoperative” because the defendants, by their participation in the interlocutory hearing before Hmelnitsky J, have waived any entitlement to rely on it.

72. I reject this submission. Although waiver of a right to insist on an arbitration or submission to jurisdiction may render an arbitration agreement “inoperative” for the purposes of s 7(5), that is not so here. The principles to be applied were discussed recently in Clough, where Bell CJ observed at [67]-[68]:

“A party with a contractual right to have a matter capable of settlement by arbitration stayed and referred to arbitration may also waive or be taken to have waived that right. In general terms, waiver which was described in Zhang v Shanghai Wool and Jute Textile Co Ltd [2006] VSCA 133; (2006) 201 FLR 178 (Zhang) at [14] as a ‘vague or imprecise term that is used in many senses’ is constituted by ‘the deliberate, intentional and unequivocal release or abandonment of the right that is later sought to be enforced’: at [14]. A party may waive its right to insist on arbitration by various means, examples of which are identified in Nygh’s at [7.34]-[7.40]. These include the filing of a cross-claim and/or a defence on the merits (see, for example, BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551) or other conduct consistent only with an intention to defend the matter on its merits in the court in which proceedings have been commenced by, for example, seeking security for costs or discovery or the striking out of the plaintiff’s claim on the merits.

The juridical concept of waiver has often been closely associated with that of election and estoppel and variation of contract: Agricultural and Rural Finance Pty Limited v Gardiner (2008) 238 CLR 570; [2008] HCA 57 at [46] and [51]-[54]; see also Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 655 per Mason J; [1974] HCA 40 (Sargent). Where a party has elected to exercise one of two inconsistent rights, that may, depending on the circumstances, result in the loss of the other right. Both waiver and election require an awareness of at least the facts giving rise to the rights which are being foregone: Zhang at [14]; Sargent at 656-8, Commonwealth v Verwayen (1990) 170 CLR 394 at 423-4, 473, 482 and 497; [1990] HCA 39. Where a matter is not arbitrable, the bringing of proceedings in respect of that matter does not involve any election because there is no (inconsistent) right to arbitrate by reason of the nature of the matter. Where a dispute involves more than one matter (in the sense of s 7(2) of the Act), an election in respect of one matter will not necessarily affect the operation of the arbitration agreement in respect of the other matter(s): cf Bakri Navigation Company Ltd v Owners of the ship ‘Golden Glory’ Glorious Shipping SA (1991) 217 ALR 152 at 168; Ahad v Uddin [2005] EWCA Civ 883 at [19]-[21].”

73. In ACD Tridon v Tridon Australia [2002] NSWSC 896 (Tridon), the plaintiffs alleged that the defendants had waived their rights to enforce the arbitration clause by consenting to directions establishing a timetable for evidence and by giving interim undertakings at an interlocutory hearing not to deal with shares purportedly transferred to them as means of forestalling an application for interlocutory injunctions: at [67]-[68]. Austin J rejected that submission, observing at [68] that:

“In my view the conduct of TAPL and Mr and Mrs Lennox in these matters was consistent with their seeking to refer the dispute to arbitration. One can rationally take the view that it is desirable to consent to timetabling directions to avoid any costs penalty, even though one believes, and intends to persuade the Court at an appropriate time, that the dispute should be arbitrated. Similarly, faced with the threat on application for an injunction, which one might judge likely to succeed, one can rationally give undertakings consistently with an intention to seek a reference to arbitration at an appropriate stage.”

74. In my judgment merely defending the interlocutory motion brought by the plaintiff and giving the Undertaking to provide reasonable assistance in the IDDBA Exhibition commencing the following day did not constitute “the deliberate, intentional and unequivocal release or abandonment of the right that is later sought to be enforced” nor is it “consistent only with an intention to defend the matter on its merits in the court in which proceedings have been commenced” in the sense described by Bell CJ in Clough in the passage I have set out above. The exchanges between Hmelnitsky J and Mr Vinoukurov set out above made it plain that, when it came to defending the matter on its merits, Mr Vinoukuorov was insisting on the rights conferred by cl 30 of the EDA. Robot X submits that by giving the Undertaking, Mr Vinoukurov “avoided a mandatory order” in the form of interlocutory relief and obtained in return the benefit of an undertaking as to damages. However, at best, this demonstrates only that the defendants waived any right to rely on the arbitration agreement as an answer to the claim for interlocutory relief made on 6 June 2026. It does not demonstrate any inconsistency with relying on that agreement as an answer to the pursuit of claims for final relief in this Court. It may also be observed that there could not, on any view, have been any waiver or submission in connection with the claims that are made for breach of the Undertaking. Those claims were not made until after the interlocutory hearing.

75. Before leaving s 7(5) of the Act, it is appropriate to record that no submission was made to me that I should find the arbitration agreement inoperative because an entitlement to refer any of the matters in dispute to arbitration had yet to arise since the anterior dispute resolution provisions had yet to be complied with (cf. John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [186]-[194], per Hammerschlag J). I make no such finding.

Conclusion on the operation of s 7(2) of the IAA

76. The result of the above analysis is that I have concluded that the entire proceedings brought by Robot X against Placer involves the determination of a “matter” that is the subject of the arbitration agreement in the EDA. Since the “matter” for the purposes of s 7(2) is confined to disputes between “parties” to the arbitration agreement and since I have not been prepared to make a finding that the second and third defendants are “parties” by operation of s 7(4), the consequence is that s 7(2) requires and permits only a stay of the proceedings as between Robot X and Placer. That includes not only the substantive dispute but also the dispute as to whether Placer is entitled to insist that Robot X brings its claims against the second and third defendants in Sweden.

Section 67 of the CPA

77. The defendants also seek a stay of the proceedings pursuant to s 67 of the CPA. They argued, first, that there should be a permanent stay because the proceedings are in breach of the exclusive jurisdiction clause, and their fall-back position is that the proceedings against the second and third defendants should be stayed pending the determination of the arbitration of the claims against Placer.

78. The exclusive jurisdiction clause relied upon is contained in cl 30.1. It is convenient to set out the terms that clause again:

“30.1. Governing Law. This Agreement and the rights of all the Parties hereunder shall be governed by and construed in accordance with the laws of Sweden, exclusive of conflict or choice of law rules. Both Parties agree that the laws of Sweden, without regard to principles of conflict of laws, shall govern this Agreement and any dispute of any sort that might arise between all the Parties. The courts in Stockholm, Sweden, shall have exclusive jurisdiction over any of the disputes arising out of or in relation to or in connection with this Agreement.”

79. An exclusive jurisdiction clause can result in a stay of proceedings brought by a party to the agreement in which it is contained against a non-party in two distinct but related ways. First, a party to the agreement can seek a stay on the ground that claims against non-parties fall within the scope of the exclusive jurisdiction clause and that it has a contractual right to enforce it. Secondly, a non-party can, in certain circumstances, approach the Court and seek to obtain the same result. In both the first and second situations, a stay is usually sought under s 67 of the CPA or its equivalent (I leave to one side the question of whether the Court’s inherent jurisdiction can be invoked on a similar basis).

80. The nature of the right of a party to an exclusive jurisdiction clause to insist on the enforcement of that clause is, self-evidently, contractual. Although such clauses cannot exclude the court’s jurisdiction, they are generally enforced unless there are “strong reasons” not to do so (see for example Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419 (Hive) at [76]-[78]). Where not all of the parties to a dispute are parties to the exclusive jurisdiction clause, there may be “strong reasons” in this sense. As Bell CJ explained in Hive at [90]:

“The importance of holding parties to their bargain is a very powerful consideration but is not one that should be elevated or given some special status in the hierarchy of factors where not all parties to the dispute are parties to the exclusive jurisdiction clause”

81. A non-party to an exclusive jurisdiction clause has no contractual right to insist on its enforcement. Emmett J in Yperion Technology SAS v Luminex Pty Ltd [2012] FCA 554 at [19]-[20] (Yperion) stated that the right of a non-party to an exclusive jurisdiction clause to seek a stay of claims that fell within it arose “as a matter of convenience”. In Global Partners, Spigelman CJ at [73] explained that in certain circumstances non-parties “are entitled to approach the Court in their own right” to request the Court in its discretion to grant a stay. The nature of this “right” of a non-party was explained by Bell CJ in HNOE Ltd v Angus & Julia Stone Pty Ltd [2024] NSWCA 271 at [112]:

“[I]t is not necessary to go so far as to say that the [non-parties] are ‘bound’ by the exclusive jurisdiction clause. An alternative way of putting the matter is to say that, as between the [parties to the exclusive jurisdiction clause], the disputes are governed by the exclusive jurisdiction clause and prima facie must be heard in accordance with the parties’ contractual agreement. That being so, and bearing in mind the very close and interconnected relationship between those disputes and the claims in restitution brought against [the non-parties], New South Wales would be a clearly inappropriate forum in which to determine such closely related claims: see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 –560, 564–5; [1990] HCA 55; Henry v Henry (1996) 185 CLR 571 at 591; [1996] HCA 51; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 399 –401; [1997] HCA 33; see also Oceanic at 247–8. A stay of the residual claims against [the non-parties] would be justified by reference to the ‘controversy as a whole’: see also Hive at [88]–[89]”

82. See also Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm) at [23(iii)] (Burrows QC, as his Lordship then was, stating the matter in a similar way, albeit in the context of an application for an anti-suit injunction and in a jurisdiction where the Voth test does not represent the law).

83. In the present case, Placer asserts that it has a contractual right under cl 30.1 to require Robot X to bring its claims against the second and third defendants in Sweden. The second and third defendants assert an entitlement to seek the same result, to use the language of Emmett J in Yperion, “as a matter of convenience” but, properly understood, on the basis that New South Wales is a clearly inappropriate forum having regard to the “controversy as a whole”. As I have said, the defendants make a submission in the alternative that Robot X’s claims against the second and third defendants be stayed on a temporary basis pending the outcome of any arbitration in Sweden. The latter course is clearly one available outcome under s 67: see Re Infinite Plus Pty Ltd (2017) 95 NSWLR 282; [2017] NSWSC 470 at [68] (Gleeson JA) and Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691 at [48]-[49] (Jagot J).

84. I have concluded that it is appropriate to grant a temporary stay pending the outcome of any arbitration or litigation between Placer and Robot X in Sweden and that I should adjourn the second and third defendants’ claims in the Amended Motion for a permanent stay. I say “or litigation” because at the present time, as I understand it, no arbitration has commenced and there is a possibility (perhaps only remote) that the jurisdiction of the Courts of Sweden will be invoked in some way by either Placer or Robot X in connection with their dispute. My reasons for arriving at this conclusion are as follows.

85. First, one matter that has been stayed and referred to arbitration under s 7(2) is, as I have said, Placer’s claim that Robot X is required by cl 30.1 to bring any claims against third parties under or in connection with the EDA in Sweden (either by way of arbitration or in a Swedish Court). Although this issue is not identical to the question of whether the second and third defendants are entitled to obtain the same result under s 67, it is preferable for this Court not to deal with the latter question before the determination by the arbitrator(s) of the former question.

86. Secondly, I have already concluded that the Amended Motion should be adjourned in so far as it concerns the second and third defendants’ claims that they are entitled to a stay under s 7(2) by virtue of being “parties” for the purposes of s 7(4). If these claims are ultimately successful, they would result in a mandatory stay and consideration of whether to grant a permanent stay under s 67 would be unnecessary. It is therefore preferable for that issue to be determined (if necessary) before, or at the same time as, the question of whether a permanent stay should be granted under s 67.

Conclusion

90. For the above reasons I order:

91. The defendants are granted leave to file an amended motion in the form served on 17 September 2026.

92. The amended motion is adjourned for directions on 29 October 2026.

93. The second and third defendants have liberty to apply in relation to the amended motion on 3 days’ notice.

94. The plaintiff is granted leave to file an Amended Summons in the form that appears in Annexure DG-3 to the affidavit of Mr Gasic sworn 31 July 2026.

95. The proceedings as between the plaintiff and the first defendant are stayed pursuant to s 7(2) of the International Arbitration Act 1974 (Cth).

96. Upon the defendants giving the undertaking in the form delivered to the Court on 17 September 2026 and subject to any orders which may be made on any further hearing of the amended motion pursuant to the liberty granted in order (3), the proceedings against the second and third defendants are stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) pending the conclusion of any arbitration or litigation in Stockholm, Sweden, between the plaintiff and the first defendant.

97. I will hear the parties on costs.

ANNEXURE**: Proposed Undertaking**

The second defendant and third defendant agree that if the NSW proceedings (No.2026/00237611) are stayed, they would consent to being joined as parties to any arbitration process commenced by Robot X against Placer (or Placer against Robot X) in accordance with clause 30 of the Exclusive Distribution Agreement between the Plaintiff and the First Defendant, for the purpose of Robot X pursuing the claims it makes against them as set out in the proposed Amended Summons which is Annexure DG-3 in the NSW proceedings.

The first defendant consents to the joinder of the second and third defendants to any such arbitration, will not oppose that joinder, and will not oppose any application or request to the tribunal, the arbitral institution or the appointing authority necessary to give effect to it.

For the avoidance of doubt, this agreement is provided on the understanding that it is without prejudice to:

1. any arguments that the first, second and third defendants may wish to raise in respect of the substance of the claims made against them; and
2. any claims that the first defendant may wish to make against Robot X or Mr Katsoulakis.

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