Royal Society for the Prevention of Cruelty to Animals (Victoria) Incorporated v Marson Constructions Pty Ltd

[2000] VSCA 38

Victorian Court of Appeal

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Interrogate

Catchwords

1. Arbitration
2. › Building contract
3. › Arbitration clause
4. › Notice of dispute
5. › Requirement to give notice 'as soon as reasonably practicable'
6. › Whether delay in giving notice rendered arbitration clause incapable of invocation
7. › Whether failure to comply with time requirement relevant to stay application
1. Arbitration
2. › Stay of court proceedings
3. › Commercial Arbitration Act 1984 (Vic), s 53(1)(b)
4. › Whether applicant ready and willing to do all things necessary for proper conduct of arbitration
5. › Whether readiness and willingness includes readiness to initiate arbitration
6. › Applicant awaiting outcome of summary judgment application in court proceedings it had commenced

Quick Take

A party that has commenced court proceedings and is awaiting the outcome of its own application for summary judgment is not 'ready and willing to do all things necessary for the proper conduct of the arbitration' under s.53(1)(b) of the Commercial Arbitration Act 1984 (Vic). Failure to give notice of dispute 'as soon as reasonably practicable' under an arbitration clause is relevant to a stay application, because a stay would be pointless if no effective reference to arbitration can be made. The onus lies on the party seeking a stay to adduce evidence justifying any delay in giving notice.