Aircraft Support Industries Pty Ltd v William Hare UAE LLC - [2015] NSWCA 229

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Aircraft Support Industries Pty Ltd v William Hare UAE LLC [2015] NSWCA 229
Hearing dates: 4 May 2015
Date of orders: 11 August 2015
Decision date: 11 August 2015
Before: Bathurst CJ at [1]; Beazley P at [64]; Sackville AJA at [65]
Decision:
Appeal dismissed.
The appellant pay the respondent’s costs of the appeal.

Catchwords: ARBITRATION – international commercial arbitration – enforcement of foreign award under the International Arbitration Act 1974 (Cth) s 8 – breach of rules of natural justice – severance – partial enforcement of award – whether part of the award was incapable of severance such that no part should be enforced
Legislation Cited: Arbitration Act 1996 (UK)
International Arbitration Act 1974 (Cth)
International Arbitration Amendment Bill 2010 (Cth)
Cases Cited: ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31
Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) (1981) 2 Lloyd’s LR 130
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 177 ALR 389
Evans v National Pool Equipment (1972) 2 NSWLR 410
Gordian Runoff Ltd v Westport Insurance Corporation [2010] NSWCA 57; 267 ALR 74
J.J. Agro Industries (P) Ltd (a firm) v Texuna International Ltd [1992] 2 HKLR 391
Nigerian National Petroleum Corporation v IPCO (Nigeria) Ltd (No 2) (2009) 1 Lloyd’s Rep 89
Rodger v De Gelder [2015] NSWCA 211
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 311 ALR 307
Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; 244 CLR 239
William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403
Texts Cited: Francis Russell, Edward Pollock and Herbert Russell, A Treatise on the Power and Duty of an Arbitrator: and The Law of Submissions and Awards (8th ed 1900, Stevens)
Category: Principal judgment
Parties: Aircraft Support Industries Pty Limited (Appellant)
William Hare UAE LLC (Respondent)
Representation:
Counsel:
BW Rayment QC / DT Kell (Appellant)
JA Hogan-Doran / Q Rares (Respondent)
Solicitors:
Tomaras Lawyers (Appellant)
Minter Ellison (Respondent)

File Number(s): 2014/332648
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division – Commercial List

Citation:

2014/170094

Date of Decision:

14 October 2014

Before:

Darke J

File Number(s):

2014/170094

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 December 2009, Aircraft Support Industries Pty Ltd (Aircraft Support) entered into a subcontract with William Hare UAE LLC (Hare) for Hare to perform construction work at Abu Dhabi airport. A dispute arose as to the final amount due and the payment of retention monies. On 10 May 2011, an officer of Aircraft Support executed a letter which was provided to Hare. It was accepted that this letter was a corrected version of a letter executed on behalf of both parties. The letter confirmed a final account sum in respect of full and final settlement of the construction…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCA 229
Decision Date: 11 August 2015

CaseChat Overview and Summary

Aircraft Support Industries Pty Ltd (the applicant) sought to enforce an international commercial arbitral award made in Dubai against William Hare UAE LLC (the respondent) in the Supreme Court of New South Wales. The applicant sought to enforce the award pursuant to section 8 of the *International Arbitration Act 1974* (Cth). The respondent resisted enforcement, arguing that the award should not be enforced on the grounds that it breached the rules of natural justice, and that the offending parts of the award were not capable of severance from the remainder.

The primary legal issues before the Court of Appeal were whether the arbitral tribunal had breached the rules of natural justice in its conduct of the arbitration, and if so, whether the parts of the award affected by this breach could be severed from the rest of the award, allowing for partial enforcement. The respondent contended that the tribunal’s failure to provide it with an opportunity to present its case on a particular issue constituted a breach of natural justice, and that this breach was so fundamental that no part of the award could be enforced.

The Court of Appeal affirmed the decision of the primary judge, finding that while there had been a breach of natural justice, it was confined to a specific aspect of the award. The Court applied the principles of severance, holding that where a breach of natural justice affects only a discrete part of an award, and the remainder of the award is otherwise valid and enforceable, the court has the power to enforce the severable, valid part. The Court concluded that the breach in this instance did not permeate the entire award, and that the substantial majority of the award remained unaffected and capable of enforcement.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

Appeal dismissed.

The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Aircraft Support Industries Pty Ltd v William Hare UAE LLC [2015] NSWCA 229
Hearing dates:	4 May 2015
Date of orders:	11 August 2015
Decision date:	11 August 2015
Before:	Bathurst CJ at [1]; Beazley P at [64]; Sackville AJA at [65]
Decision:	Appeal dismissed. The appellant pay the respondent’s costs of the appeal.
Catchwords:	ARBITRATION – international commercial arbitration – enforcement of foreign award under the International Arbitration Act 1974 (Cth) s 8 – breach of rules of natural justice – severance – partial enforcement of award – whether part of the award was incapable of severance such that no part should be enforced
Legislation Cited:	Arbitration Act 1996 (UK) International Arbitration Act 1974 (Cth) International Arbitration Amendment Bill 2010 (Cth)
Cases Cited:	ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31 Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) (1981) 2 Lloyd’s LR 130 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 177 ALR 389 Evans v National Pool Equipment (1972) 2 NSWLR 410 Gordian Runoff Ltd v Westport Insurance Corporation [2010] NSWCA 57; 267 ALR 74 J.J. Agro Industries (P) Ltd (a firm) v Texuna International Ltd [1992] 2 HKLR 391 Nigerian National Petroleum Corporation v IPCO (Nigeria) Ltd (No 2) (2009) 1 Lloyd’s Rep 89 Rodger v De Gelder [2015] NSWCA 211 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 311 ALR 307 Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; 244 CLR 239 William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403
Texts Cited:	Francis Russell, Edward Pollock and Herbert Russell, A Treatise on the Power and Duty of an Arbitrator: and The Law of Submissions and Awards (8th ed 1900, Stevens)
Category:	Principal judgment
Parties:	Aircraft Support Industries Pty Limited (Appellant) William Hare UAE LLC (Respondent)
Representation:	Counsel: BW Rayment QC / DT Kell (Appellant) JA Hogan-Doran / Q Rares (Respondent) Solicitors: Tomaras Lawyers (Appellant) Minter Ellison (Respondent)
File Number(s):	2014/332648
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Commercial List Citation: 2014/170094 Date of Decision: 14 October 2014 Before: Darke J File Number(s): 2014/170094