Federal Court of Australia

Pastoral Property Admin Pty Ltd (formerly Packhorse Investments Australia Ltd) v Burgoyne Capital Ltd England [2026] FCA 1539

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicants pay the respondent’s costs of that application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    This is an application for leave to appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) (the Court) in Pastoral Property Admin Pty Ltd v Burgoyne Capital Ltd [2026] FedCFamC2G 1528 (Primary Judgment or PJ), in which the primary judge dismissed an application for a stay of a cross-claim brought by Burgoyne Capital Ltd (Burgoyne) under s 7(2) of the International Arbitration Act 1974 (Cth) (IAA). The applicants for leave to appeal are Pastoral Property Admin Pty Ltd (Pastoral) and Ms Anna Strachan in her capacity as Executor of the Estate of the late Thomas Strachan (the Estate).

2    Pastoral’s claim in the underlying proceedings concerns the unfair contract regime in Pt 2-3 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)). Burgoyne’s cross-claim concerns an Introduction Deed dated 4 March 2022 between Burgoyne, Pastoral and the late Thomas Strachan, which contains an arbitration clause requiring (inter alia) any dispute relating to the Deed to be resolved by arbitration in London.

3    The salient facts are as follows. On 22 May 2023, Burgoyne invoked the arbitration clause in correspondence with Pastoral and the Estate. On 26 May 2023, Pastoral and the Estate responded by saying that they would either submit to the arbitration, or would sue Burgoyne in Australia. On 20 December 2023, Pastoral commenced proceedings in the Court. On 17 March 2025, Pastoral and the Estate filed a defence to Burgoyne’s cross-claim, which pleaded that the cross-claim was liable to be stayed pursuant to s 7(2) of the IAA. On 28 November 2025, Pastoral and the Estate obtained orders for discovery against Burgoyne. On 27 March 2026, Pastoral and the Estate filed and served their evidence in chief, and on 8 May 2026, Pastoral and the Estate filed and served their evidence in reply. On 11 May 2026, when the matter was ready to be listed for final hearing, Pastoral and the Estate applied for a stay.

4    The Primary Judgment was delivered on 6 August 2026. The matter has now been fixed for final hearing in the Court on 8–10 February 2027.

5    The real issue between the parties concerned whether Pastoral and the Estate had waived, abandoned or repudiated the arbitration clause, such that it was inoperative under s 7(5) of the IAA. The primary judge found that Pastoral and the Estate had been aware of the right to seek referral of the dispute to arbitration since May 2023, and that finding was reinforced by the reference to a stay pursuant to the IAA in their defence to the cross-claim: PJ [64]. The primary judge said that in the following 14 months, discovery was undertaken, and all evidence for trial was filed, without an application for a stay: PJ [65]. The primary judge said that Pastoral’s and the Estate’s decision to continue down the pre-hearing path, such that the matter was ready to be allocated a final hearing date, and only then to seek a stay and referral to arbitration was “evidence of a strong waiver and/or repudiation” of the arbitration clause: PJ [67]. The primary judge said that the “point of no return” was the seeking and obtaining of discovery and/or the filing by both parties of all evidence to be relied upon, and the matter being in all respects ready for the allocation of a final hearing date: PJ [67].

6    The reference to a “strong waiver” is explained earlier in the Primary Judgment at [36], where the primary judge referred to Finkelstein J’s statement in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551; (2008) 168 FCR 169 (BHPB) at [52] that waiver in the stronger sense occurs when a party makes an intentional and irrevocable choice not to exercise a right when it has notice of the right, with the result that the right is abandoned. That may be contrasted with waiver in the weaker sense, which occurs when a party fails to insist upon a right at an appropriate time either by choice or default: BHPB at [52], cited in the Primary Judgment at [37]. It is common ground between the parties on this application that, for the purposes of s 7(5) of the IAA, the relevant waiver must be waiver in the stronger sense, being the intentional abandonment of a right with knowledge of it.

7    The primary judge also referred to being mindful of the consequences of a stay as sought by Pastoral and the Estate, namely that it would entail bifurcated litigation, with the possibility of different outcomes on the same facts: PJ [68]. However, I do not regard that reasoning as relevant to the question of whether waiver, abandonment or repudiation is established.

8    The two tests to be applied cumulatively in deciding whether to grant leave to appeal are generally (1) whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court, and (2) whether substantial injustice would result if leave were refused: Décor Group Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398–99 (Sheppard, Burchett and Heerey JJ).

9    Dealing with the first test, Pastoral and the Estate first submit that the primary judge did not make an express finding that they had waived, abandoned or repudiated the arbitration clause. That submission turns on a misreading of the Primary Judgment. The references to evidence of a strong waiver and repudiation of the arbitration clause (PJ [67]), and passing the point of no return (PJ [67]), the latter reflecting the notion of irrevocability (PJ [36]), when read either in isolation or in context are findings of those very matters. I therefore reject that first line of argument.

10    Pastoral and the Estate then submit that, if those findings were made, then the primary judge’s reasons amount to no more than conclusionary statements and fail to grapple with their case. Pastoral and the Estate submit that seeking and obtaining discovery, and filing all evidence, such that the matter was ready for the allocation of a hearing date, did not demonstrate a deliberate, intentional and unequivocal release or abandonment of the right to arbitrate, given that Pastoral and the Estate did not communicate a withdrawal of the position expressed in their defence to the cross-claim. I reject those submissions. Pastoral’s and the Estate’s conduct over a 14-month period in pursing the Court’s pre-trial processes did convey unequivocally an intention not to insist on performance of the arbitration clause and not to seek a stay of the Court proceedings. I regard the present case for waiver, abandonment or repudiation as stronger than that in BHPB, where an unconditional appearance was entered, 8½ months’ delay occurred, in which time a defence was filed and discovery was undertaken, and a finding was made of an intentional and unequivocal choice not to insist on a right to arbitrate: see [53]–[54]. Similarly, the present case is stronger than the unequivocal abandonment of a right to arbitrate in La Donna Pty Ltd v Wolford [2005] VSC 359, which was based on an application being made to the court for security for costs: at [25]–[27]. The present case is also stronger than the waiver in the strong sense found to have been established in Dialogue Consulting Pty Ltd v Instagram, Inc [2020] FCA 1846; (2020) 291 FCR 155 at [599], where there was a period of 12 months of defences, notices to produce, requests for particulars and discovery correspondence, with no trial fixed. That decision was affirmed in Instagram, Inc v Dialogue Consulting Pty Ltd [2022] FCAFC 7; (2022) 291 FCR 240.

11    Accordingly, the Primary Judgment is not attended with sufficient doubt to warrant its reconsideration by the Full Court.

12    In any event, I am not satisfied that substantial injustice would result from the refusal of leave. Pastoral and the Estate will have the benefit of a trial in February 2027, in the Court which Pastoral chose for its own claim. Pastoral and the Estate have not made any criticism of the standards of competence, fairness and efficiency of the Court, whether generally or specifically in comparison to a London arbitration. They will be saved having to pay their share of the arbitrator’s fees, and will not suffer the inconvenience and travel costs of litigating in London. Although they will not have the benefit of the privacy of an arbitration, Pastoral and the Estate have not raised that as a matter of concern. The conduct of Pastoral and the Estate in proceeding with pre-trial steps in the Court for many months is not indicative of any injustice, let alone substantial injustice, in seeing that process through to completion at the final hearing.

13    Although there was some debate before me as to whether the consequence of a stay would have entailed bifurcation of the litigation between the principal claim being heard and decided by the Court and the cross-claim being resolved by arbitration, it is not necessary to consider that matter. I note for completeness that the order sought in the interlocutory application in the Court dated 11 May 2026 was for a stay only of the cross-claim, whereas the order sought in the draft notice of appeal is for a stay of the entire proceedings.

14    Accordingly, the application for leave to appeal should be dismissed with costs.

Associate:

Dated:    16 October 2026