Cufone & ORS v Cruse & ORS

CUFONE & ORS V CRUSE &ORS NO SCGRG-99-269 [269] SASC 304 (8 SEPTEMBER 2000)

Supreme Court of South Australia

FACTS

Cufone and Cruse owned equal numbers of units in a unit trust that operated a tavern for which Fun Trading was the trustee. Cufone and Cruse had equal shareholding in Fun Trading but the Cufone representatives held majority interest on the Board of Directors of Fun Trading.

Cruse sought equality in the representation of each group as directors of Fun Trading and as signatories to the Company’s bank account. The parties referred the dispute to an arbitrator subsequent to clause 9 of an agreement between the parties.

The Arbitrator consented to Cufone submitting any question of law arising from the ruling to the Supreme Court pursuant to s39 (1)(a) of the Commercial Arbitration Act (“the Act”) and did not make an award. Cufone therefore applied to the court contending that the Arbitrator had no jurisdiction under s42 of the Act and sought declaratory relief.

ISSUE

1. Does the arbitrator have power to grant declaratory relief?
2. Is rectification of the agreement is within the ambit of the arbitration clause?

FINDING