Jemena Gas Networks (NSW) Ltd v AGL Energy Limited

[2017] NSWCA 266

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Application for leave to appeal
3. › Whether judgment below attended by sufficient doubt to warrant leave to appeal
4. › Construction of commercial contract
5. › Whether clause constitutes arbitration agreement
1. Arbitration
2. › Arbitration agreement
3. › Definition and form
4. › Whether contractual clause referring to arbitration or litigation constitutes agreement to submit disputes to arbitration
5. › Distinction between recognising possibility of arbitration and agreeing to arbitrate
6. › Commercial Arbitration Act 2010 (NSW), ss 7, 8
1. Contract
2. › Construction
3. › Commercial contract
4. › Dispute resolution clause
5. › Whether reference to 'recourse to arbitration or litigation' creates right to require arbitration or merely recognises available options

Quick Take

A dispute resolution clause that refers to 'recourse to arbitration or litigation' after mediation merely recognises available options and does not constitute an 'arbitration agreement' within s 7 of the Commercial Arbitration Act 2010 (NSW). To create an enforceable arbitration agreement, a clause must contain an express or implicit agreement to submit disputes to arbitration, not merely identify arbitration as a possibility. The word 'recourse' in such a clause refers to availability, not a right to compel arbitration.