Mount Wellington Mine Ltd v Renewable Energy Co-Operative Ltd

On a challenge to an arbitrator’s substantive jurisdiction, the court must distinguish between the disputes actually referred and later disputes. The scope of a reference is determined objectively by construing the notice of arbitration in its factual context. A reference concerning specified disputes does not extend to later issues merely because they arise from the same lease or factual background.

A compromise is confined by its terms and context. A settlement of relief from forfeiture does not compromise separate issues which the court was neither asked nor required to determine. Conversion of a company into a registered society under the Co-operative and Community Benefit Societies Act 2014 changes the legal regime governing the entity but does not transfer its assets and liabilities to a new legal person.

Mount Wellington Mine Ltd, the landlord and respondent in an arbitration, challenged an award on jurisdiction under section 67 of the Arbitration Act 1996. Renewable Energy Co-Operative Ltd claimed to be the tenant under a lease originally entered into by a company which had later converted into a registered society.

The challenge concerned whether the conversion left the society entitled to enforce the lease, the effect of registration of the lease, alleged estoppel and admissions, the effect of a later compromise of relief-from-forfeiture proceedings, and whether further disputes raised in 2020 fell within the original reference to arbitration.

1. Disposition. The arbitrator had jurisdiction over the original disputes referred in 2016, but not over the additional matters raised by the society’s email of 24 February 2020. Consequential matters were reserved for written submissions.
2. Conversion. Sections 109, 112, 114, 115 and 117 of the Co-operative and Community Benefit Societies Act 2014 did not require an express assignment of the lease. Conversion was a change of legal status or regime. The same legal person continued, with its existing assets and liabilities. The court relied on and approved the reasoning in Re London Housing Society’s Trust Deeds [1940] Ch 777, including the description of conversion as the same entity in a different structure.
3. Registration. Even if the society had not been the same legal person, registration under section 58 of the Land Registration Act 2002 vested the lease in it. Privity of estate would also have transferred the tenant’s rights against the landlord, including rights arising under the arbitration clause.
4. Estoppel and admissions. The section 146 notice did not amount to an unequivocal representation that the society was the tenant. The admissions in the relief-from-forfeiture proceedings, however, supported the conclusion that the lease continued between the parties.
5. Compromise. The principles of res judicata and Henderson v Henderson apply between court proceedings and arbitration. Their application depends on the precise terms and context of the compromise. The Part 36 offer settled only relief from forfeiture and costs. It did not settle the issues being arbitrated, which the court had not been asked or required to decide.
6. Scope. The reference was construed objectively and did not contain general words referring all disputes between the parties. It covered the validity of the lease, alleged roof damage and refusal of access to read the meter, but not later issues concerning the inverter, electricity supply and related matters. A broad construction may be appropriate in another case, but was not justified here.