Summary

This case involved applications for leave to appeal and cross-appeal from the primary judge's decision to stay part but not all of a cross-claim brought by Clough Projects Australia Pty Ltd (Clough) against Elecnor Australia Pty Ltd (Elecnor) and to refer that part to arbitration in circumstances where Elecnor's claim against Clough will be resolved curially.

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INTERNATIONAL ARBITRATION -- arbitration agreement -- stay of proceedings under s 7(2) of International Arbitration Act 1974 (Cth) -- whether proceedings involved "matter[s]...capable of settlement by arbitration" -- meaning of "matter" as distinct from "proceedings" -- arbitrability -- where bad faith defence was part of the same "matter" as claim -- where cross- claim was a distinct matter -- where cross-claim involved construction of deed of company arrangement and was not arbitrable -- meaning of "through or under" in s 7(4) of the International Arbitration Act 1974 (Cth) -- whether third-party defence was brought "through or under" party to arbitration agreement -- whether arbitration agreement was "inoperative" under s 7(5) of the International Arbitration Act 1974 (Cth) -- whether agreement was waived, abandoned or repudiated by commencement or continuation of curial proceedings -- CONTRACT -- ready, willing and able -- whether disputing of cross-claim meant party was not ready, willing and able to perform contractual obligations -- confined to essential obligations -- fractured, arbitrability, settlement