Univex (Canada) Ltd v Trinidad and Tobago Racing Authority
| Jurisdiction | Trinidad & Tobago |
| Judge | Gopeesingh, J. |
| Judgment Date | 28 March 1991 |
| Neutral Citation | TT 1991 HC 93 |
| Docket Number | 1633 of 1985 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 March 1991 |
High Court
Gopeesingh, J.
1633 of 1985
Mr. T. Hosein, S.C. for defendant (absent), Mr. R. Nelson with him.
Mr. M de la Bastide S.C. for defendant; Mr. C. Phelps with him — instructed by Messrs. Montano and Company.
Practice and procedure - Stay of proceedings — Stay sought by defendant on ground that the subject matter of the present action had already been referred to the International Chamber of commerce Court of arbitration — Duplication of proceedings — Plaintiff to elect which of the two proceedings it would pursue and should effectively terminate the proceedings which it elects not to pursue.
By a summons dated and filed on April 8, 1986, the defendant seeks the following orders: “A. That the Writ and all subsequent proceedings be struck out, or that all further proceedings in this action be stayed, under the inherent jurisdiction of the court and/or Order 18, rule 19 of the Rules of the Supreme Court, 1975 on the following grounds:
- (a) that the action herein is frivolous and vexatious and an abuse of the process of the court in that:– (i) in High Court Action No. 4519 of 1982 between the defendant herein as plaintiff and the plaintiff herein as defendant filed on 25th November, 1982, the plaintiff herein maintained: (a) that a certain reference to arbitration to the International Chamber of Commerce Court of Arbitration (“the said Court of Arbitration”) of the issues arising in the present action, pursuant to the arbitration clause contained in the Conditions of Contract referred to as Contract D in the Statement of Claim herein, had been properly made; (b) that the said reference in so far as it related to Contract ‘E’ referred to in the said Statement of Claim had also been properly made to the said Court of Arbitration; (c) that the courts of Trinidad and Tobago therefore had no jurisdiction to entertain any action in relation to the said issues, such issues being properly determinable by reference to the said Court of Arbitration. (ii) After the trial of the said action Mr. Justice Collymore delivered a judgment in which he held, inter alia, that the said reference to the said Court of Arbitration was invalid in relation to both contracts ‘D’ and ‘E’, but the plaintiff herein has appealed against the said judgment and continues to maintain that the said reference to the said Court of Arbitration was valid in relation to the said issues arising in respect of both contracts ‘D’ and ‘E.. (iii) that the issue raised by the plaintiff in its statement of claim as to an alleged breach of contract ‘E’ has been adjudicated upon and determined in the said High Court Action No. 4519 of 1982. 2. That the Writ herein fails to establish any right in the plaintiff to sue. B. And that the plaintiff do pay to the defendant the costs of this application fit for counsel, to be taxed.”
In support of its summons the defendant filed an affidavit sworn to by Mr. John Derek Cozier, Secretary of the defendant Authority, on April 8, 1986 as well as a further affidavit sworn to by Mr. Edward Collier, on May 3, 1990.
The plaintiff filed no affidavit in opposition thereto. I think I should point out that the defendant expressly abandoned ground 2 above, during the hearing of the instant summons.
Amongst the uncontradicted facts, reflected in Mr. Cozier's affidavits, it is evident that by an Agreement in writing, dated January 14, 1981, referred to as Contract ‘D’, the plaintiff agreed to execute certain works at Caroni Racing Complex at a base price and upon the terms and subject to certain conditions mentioned therein, including an arbitration clause, namely article 67. There were also other proposed works to be embodied in another Contract, ‘E’, but according to the defendant, and as held by Collymore, J., in High Court Action No. 4519 of 1982, this proposed contract was never in fact concluded. On May 15, 1981, the defendant suspended works on this Complex, as a result of which disputes arose in respect of an alleged abandonment of contract ‘D’ and the proposed contract ‘E’. The plaintiff, by letter dated March 12, 1982, notified the defendant's agent that it was treating the defendant as having abandoned both contracts ‘D’ and ‘E’ and by subsequent letters dated April 30, 1982 and March 19, 1982 the plaintiff made claims for certain sums with respect to contracts ‘D’ and ‘E’, respectively. The defendant rejected these claims by letters dated July 28, 1982 and March 31, 1982, respectively. Pursuant to the provisions of article 67, contained in contract ‘D’, the plaintiff purported to refer to the disputes with respect to contract ‘D’ and the proposed contract ‘E’ to the International Chamber of Commerce Court of Arbitration, (hereinafter refereed to as I.C.C., for ease of reference), by way of a Request for Arbitration dated September 2, 1982. By this request, referred to in a Schedule to Writ of Summons No. 4519 of 1982 annexed to Mr. Cozier's first affidavit as “J.D.C.I “, the plaintiff claimed damages arising out of alleged abandonment, by the defendant, of contract ‘D’ and the proposed contract ‘E’, as well as damages arising out of flooding of the work site covered by contract ‘W. The said Request for Arbitration and the proceedings arising therefrom are still pending before the I.C.C. On November 25, 1982, the defendant herein filed High Court Action No. 4519 of 1982, seeking declaratory and injunctive reliefs against the plaintiff herein, contending that the said Request for Arbitration with respect to contract ‘D’ was premature and therefore null and void and with respect to the proposed contract ‘E’, that there was no concluded contract and consequently, no arbitration agreement and alternatively, if there was a concluded contract ‘E’, the said Request was also premature since there was no prior reference to an Engineer, as required by article 67 of contract ‘D’. Pursuant to this action, an ex-parte injunction was obtained by the defendant on November 26, 1982, restraining further proceedings upon the said Request except in conformity with the Arbitration clause and this ex parte injunction was subsequently, on March 7, 1983, ordered to be continued until trial of the said action.
The said action No. 4519 of 1982 was subsequently tried before Collymore, J., who handed down judgment on October 19, 1984. By a Notice of Appeal filed on October 31, 1982 the plaintiff herein appealed the whole of that decision, thereby affirming that its reference to the I.C.C. was properly made with respect both to contract ‘D’ and the proposed contract ‘E’. This notice of appeal was not served on the defendant herein but the appeal is still pending.
In spite of the pendency of the Request for Arbitration and the appeal in Action No. 4519 of 1982, however, the plaintiff herein proceeded to file the present action No. 1633 of 1985 on March 29, 1985, the Writ of Summons of which was served on the defendant on March 18, 1986 and the Statement of Claim on March 26, 1986. It is not disputed that the matters, which are the subject matter of the plaintiffs claim in the present action, were also the subject of the Request for Arbitration made by the plaintiff and which were challenged by the defendant herein in its action No. 4519 of 1982, hereinafter referred to as the first action. It is also not disputed that in that first action, Collymore, J. held that there had been no valid reference to arbitration but that an injunction would not be granted in respect of that reference, in relation to contract ‘D’, but that in relation to contract ‘E’, it was held that there was no binding contract and therefore there could be no reference to arbitration and an injunction was granted. Notwithstanding the binding effect of the said conclusions, however, the plaintiff herein continues to maintain, in the present action, a claim for breach of the proposed contract ‘E’ on the footing that there was a valid contract ‘E’.
In the light of the above, the defendant seeks the orders reflected on the instant summons upon the grounds reflected therein.
It is submitted on behalf of the defendant that the plaintiff's claim for damages for breach of contracts ‘D’ and ‘E’ was not only the subject matter of the plaintiff's Request for Arbitration, but it is plain on comparing paragraphs 3, 4 and 5 of the Statement of Claim in the present action with paragraph 2, in particular, and the rest of the defence in the first action, that the very issues raised in the present action, in relation to contract ‘E’ and which formed the subject matter of reference to arbitration, were also raised in the first action. From the judgment of Collymore, J., annexed as “J.D.C.2” to Mr. Cozier's first affidavit, it is clear that the issue of the validity and existence of contract ‘E’ loomed large at that trial and the clear conclusion of the court was that, in relation to contract ‘E’, no concluded contract was arrived at and consequently there was no valid and binding contract ‘E’. As a result, the injunction sought in the first action, in relation to contract ‘E’, was granted.
However, in relation to contract ‘D’, the court held that there was indisputably, a valid and binding contract and that it was “common ground” that there was a valid arbitration agreement in relation to that contract, by virtue of the provisions, therein, of article 67. Nevertheless, attorney submits, the court went on to hold that the instant plaintiff had not set in motion the procedure for reference to the I.C.C. there having been no preliminary decision of an Engineer and accordingly, that the reference to the I.C.C. was not proper. It is also submitted that the court further held that the matters in dispute in relation to contract ‘D’, namely, whether the contract was frustrated and thereby discharged, appear not to have...
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