Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 3)
[2012] FCA 1282
•19 November 2012
FEDERAL COURT OF AUSTRALIA
Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 3) [2012] FCA 1282
Citation: Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 3) [2012] FCA 1282 Parties: CASTEL ELECTRONICS PTY LTD v TCL AIR CONDITIONER (ZHONGSHAN) CO LTD File numbers: VID 218 of 2011
VID 224 of 2011
VID 317 of 2011Judge: MURPHY J Date of judgment: 19 November 2012 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 218 of 2011
BETWEEN: CASTEL ELECTRONICS PTY LTD
ApplicantAND: TCL AIR CONDITIONER (ZHONGSHAN) CO LTD
Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
19 NOVEMBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.There be judgment for the Applicant in respect of the Final Award other than on Costs of the arbitral tribunal dated 23 December 2010 against the Respondent in an amount of $3,744,887.88, comprising:
(a)$2,198,656 for the OEM claim;
(b)$745,522 for the faulty goods claim;
(c)$131,508 for the debt claim; and
(d)$293,665 representing interest on the sums in (a), (b) and (c) calculated at the rate of 5% per annum from 25 January 2009 to 23 December 2010, being 697 days;
less $209,035 in respect of the amount ordered payable to the Respondent under the Final Award, comprising:
(e)$190,816 for the breach of the minimum purchase levels claim; and
(f)$18,219 representing interest on that sum from 25 January 2009, being 56 days;
plus
(g)further interest accruing 28 days from the date of the Final Award to 17 March 2011 at the rate of 5% per annum on any unpaid amount of the Final Award of $3,160,316, which is 84 days, of $36,365.28; and
(h)further interest accruing from 18 March 2011 (being the date of issue of the application) at the rate of 10.5% per annum for 603 days being $548,206.60. Interest accrues from 9 November 2012 at the rate of $909.13 per day.
2.There be judgment for the Applicant in terms of the Final Award on Costs dated 27 January 2011 in the sum of $864,580.79 (being the costs of the arbitration fixed at $732,500 plus interest thereon at the rate of 5% per annum from 27 January 2011 to 17 March 2011 being 50 days amounting to $5,017.12 and interest thereon at the rate of 10.5% from 18 March 2011 to 9 November 2012 being 603 days amounting to $127,063.66). Interest accrues from 9 November 2012 at the rate of $210.72 per day.
3.The Respondent pay the Applicant’s costs, including reserved costs, of this application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 224 of 2011
BETWEEN: TCL AIR CONDITIONER (ZHONGSHAN) CO LTD
ApplicantAND: CASTEL ELECTRONICS PTY LTD
Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
19 NOVEMBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Applicant’s application is dismissed.
2.The Applicant pay the Respondent’s costs, including reserved costs, of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 317 of 2011
BETWEEN: TCL AIR CONDITIONER (ZHONGSHAN) CO LTD
ApplicantAND: CASTEL ELECTRONICS PTY LTD
Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
19 NOVEMBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Applicant’s application is dismissed.
2.The Applicant pay the Respondent’s costs, including reserved costs, of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 218 of 2011
BETWEEN: CASTEL ELECTRONICS PTY LTD
ApplicantAND: TCL AIR CONDITIONER (ZHONGSHAN) CO LTD
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 224 of 2011
VID 317 of 2011
BETWEEN: TCL AIR CONDITIONER (ZHONGSHAN) CO LTD
ApplicantAND: CASTEL ELECTRONICS PTY LTD
Respondent
JUDGE:
MURPHY J
DATE:
19 NOVEMBER 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 2 November 2012 I handed down my reasons for judgment in these proceedings and made the following orders:
1.The parties are to confer and provide draft orders to the Court giving effect to these reasons within seven days.
2.The parties to file short submissions as to costs within seven days.
In accordance with my orders, Browne & Co, the solicitors for Castel Electronics Pty Ltd (“Castel”), provided draft orders to my chambers on 9 November 2012. Norton Rose, the solicitors for TCL Air Conditioner (Zhongshan) Co Ltd (“TCL”), sought an extension of time to comply with the order. By an email of 9 November 2012 they stated:
We refer to His Honour's judgment delivered last Friday 2 November 2012 and His Honour's request for draft orders giving effect to the reasons by today.
Yesterday, we received draft orders from Browne & Co on behalf of Castel Electronics Pty Ltd. The draft orders contain, among other things, detailed calculations in relation to interest and principal amounts in the claim.
It is necessary for us to review the extensive judgment, consider the proposed orders and detailed calculations, obtain instructions from our client which is based in China and confer with Browne & Co.
Accordingly, we would be grateful if you could let us know if His Honour is content to permit the parties a further 7 days to finalise the position in this regard, such that the parties' proposed orders and costs submissions (if any) be provided by next Friday 16 November 2012.
Please note that Browne & Co oppose this extension of time. However, we respectfully submit that the extension results in no prejudice to their client.
Although Castel opposed it, I allowed an extension of time until 4.00 pm on 14 November 2012. On that day by an email to my chambers Norton Rose advised:
Our client has no submissions to make in relation to the form of the orders.
It appeared that TCL had failed to comply with the order, and my chambers sent an email to Norton Rose on 15 November 2012 in the following terms:
Your client was ordered by his Honour to confer and provide draft orders giving effect to the Reasons.
You asked for an extension to comply with the orders, which was granted. It now appears that you may not have conferred with the other party's representatives, and it is clear that you have not provided draft orders giving effect to the Reasons.
His Honour has requested me to advise you that you must immediately confer with the representatives for Castel and file draft orders giving effect to the Reasons. His Honour expects to receive draft orders by 5.00 pm today.
Please immediately contact me should there be any difficulty in your meeting this requirement.
Later that day Mr Nigel Jones, a partner of Norton Rose sent an email to chambers in the following terms:
I refer to your email below.
The parties' respective junior counsel communicated with each other last week in relation to the Court's request for draft Orders. As a result, draft Orders were received by us from Browne & Co.
In our email sent to you last Friday, we submitted that further time to consider the matter was required as it was necessary for us to, among other things, obtain instructions from our client which is based in China. Having now obtained those instructions, I am instructed by my client that it has no submissions to make in relation to the form of the Orders.
Accordingly, in light of my instructions, I respectively [sic] submit that I am now unable to advance the matter further in the manner required by His Honour. In adopting this position, I mean no disrespect to the Court. The position is simply in accordance with my instructions.
I made the orders for the filing of draft orders after conference between the parties to ensure that both parties had the opportunity to be heard as to the appropriate form of orders, and to ensure that I was assisted to make orders which correctly reflected matters of detail such as the correct principal amounts and the correct calculation of interest in all claims dealt with in the Award, including in relation to set-offs in favour of TCL.
If TCL had a different view to Castel as to the orders to be made, including the correct principal amounts and the correct calculation of interest, I did not have the benefit of hearing it. The Court is left with only the draft orders submitted by Castel’s representatives. As those draft orders do give effect to my reasons, I make orders in those terms.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 19 November 2012
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