Citi-Con (Vic) Pty Ltd v Buckley Street Developments Pty Ltd
[2023] VSC 256
•11 May 2023 (publication of reasons 16 May 2023)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
ARBITRATION LIST
S ECI 2023 00948
| CITI-CON (VIC) PTY LTD (ACN 143 889 678) | Applicant |
| v | |
| BUCKLEY STREET DEVELOPMENTS PTY LTD (ACN 600 366 158) | Respondent |
---
JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 May 2023 |
DATE OF JUDGMENT: | 11 May 2023 (publication of reasons 16 May 2023) |
CASE MAY BE CITED AS: | Citi-Con (Vic) Pty Ltd v Buckley Street Developments Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 256 |
---
ARBITRATION — Recognition and enforcement of arbitral award — Commercial Arbitration Act 2011 (Vic) s 35.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Tevelein | Eidelweisz Lawyers |
| For the Respondent | No appearance |
HIS HONOUR:
Introduction
The applicant (‘Citi-Con’) commenced this application by originating application filed on 10 March 2023 (‘Originating Application’) seeking:
(a) an order under s 35 of the Commercial Arbitration Act 2011 (Vic) (‘Commercial Arbitration Act’) that an award dated 17 January 2023 be enforced against the respondent;
(b) an order under s 35 of the Commercial Arbitration Act that an award dated 3 March 2023 be enforced against the respondent; and
(c) such further or other orders as the Court thinks fit.
In support of its application, Citi-Con relies on the affidavit of Brendon Smith dated 10 March 2023 (‘Smith Affidavit’) and also the affidavit of Brendon Smith dated 9 May 2023 (‘Further Smith Affidavit’).
Despite having been served with the Originating Application and the requisite documents in support, the respondent has failed to file a notice of appearance and did not appear at the hearing of this application.
Key facts
The parties entered into a building contract dated 23 October 2017 concerning the construction of a mixed-use development of property located at 222 Buckley Street in Essendon, Victoria.
Citi-Con was the builder under the building contract. The respondent was the developer.
Disputes arose under the building contract in relation to claims made by Citi‑Con against the respondent for:
(a) delay costs;
(b) accommodation rental costs;
(c) interest payable on alleged late payments; and
(d) costs concerning variations and superintendent fees.
The parties entered into an arbitration agreement dated 15 March 2021 to refer the existing dispute to arbitration.
Mr Michael JF Sweeney OAM was appointed as arbitrator.
On 17 January 2023, Mr Sweeney delivered an interim award (‘Interim Award’) ordering that the respondent pay Citi-Con $628,178.38, being the sum of $533,767.36 together with interest in the amount of $94,411.02.[1]
[1]Affidavit of Brendon Smith dated 10 March 2023, [4(a)] (‘Smith Affidavit’). See also Interim Award at pages 2‑3 of the bundle of documents exhibited to the Smith Affidavit (‘Smith Exhibit Bundle’).
On 3 March 2023, Mr Sweeney delivered a final award (‘Final Award’) ordering that the respondent pay Citi-Con’s costs of the arbitration, including:
(a) the fees and expenses of the arbitrator fixed in the amount of $59,488.25; and
(b) the costs of the arbitration (other than the fees and expenses of the arbitrator) as assessed by the Costs Court of the Supreme Court of Victoria on a standard basis.[2]
[2]Smith Affidavit, [4(b)].
As at the date of the Originating Application, all amounts awarded to Citi-Con under the Interim Award and the Final Award remained outstanding.[3]
[3]Ibid [6] and [7].
Procedural matters
Applications under s 35 of the Commercial Arbitration Act are to be made in accordance with rule 9.21 (Application to enforce award) of the Supreme Court (Chapter II Arbitration Amendment) Rules2014 (Vic) (‘Supreme Court Arbitration Rules’).
Rule 9.21 of the Supreme Court Arbitration Rules requires that the application be:
(a) in Form 2-9Y.[4] The Originating Application is in the required form; and
[4]Supreme Court (Chapter II Arbitration Amendment) Rules2014 (Vic), r 9.21(1) (‘Supreme Court Arbitration Rules’).
(b) accompanied by:
(i) the documents referred to in s 35 of the Commercial Arbitration Act.[5] This is addressed at paragraphs 14 to 16 below; and
[5]Ibid r 9.21(2)(a).
(ii) an affidavit stating:
(a)the extent to which the award has not been complied with at the date of the application. Mr Smith’s evidence is that all amounts awarded under the Interim Award and the Final Award remained outstanding, being $628,178.38 under the Interim Award and $59,488.25 under the Final Award.[6] The costs of the arbitration have not yet been taxed by the Costs Court;[7] and
(b)the last-known registered office of the respondent. Mr Smith’s evidence is that that address is Wilckens Roche Lawyers, 43 Ferguson Street, Williamstown, VIC 3016.[8] Mr Smith relies on an ASIC search dated 10 March 2023.[9]
[6]Smith Affidavit, [6] and [7].
[7]Ibid [5].
[8]Ibid [8].
[9]Ibid [8]. See also the copy of the ASIC search at pages 5-7 of the Smith Exhibit Bundle.
Section 35 of the Commercial Arbitration Act
Section 35(1) of the Commercial Arbitration Act provides that:
[a]n arbitral award, irrespective of the State or Territory in which it was made, is to be recognized in this State as binding and, on application in writing to the Court, is to be enforced subject to the provisions of this section and section 36.
Section 35(2) of the Commercial Arbitration Act requires the party seeking to enforce an award to supply the original award or a copy of the original award. Consistent with that requirement, the Smith Affidavit exhibits a copy of each of the awards sought to be enforced in this proceeding, namely the Interim Award and the Final Award.[10]
[10]Smith Affidavit, [4]. See also the copy of the Interim Award at pages 2-3 of the Smith Exhibit Bundle and the copy of the Final Award at page 4 of the Smith Exhibit Bundle.
Section 36 of the Commercial Arbitration Act sets out the grounds for refusing recognition or enforcement of an award. Citi-Con:
(a) notes that the respondent, having not participated in this proceeding, has not made any relevant request for refusal under s 36(1)(a) of the Commercial Arbitration Act; and
(b) in any event, is not aware of any s 36 grounds upon which Citi‑Con’s application could be refused in the circumstances of the case.
Service of application on respondent and respondent’s failure to participate in the proceeding
Citi-Con provided the affidavits of service of:
(a) Adriana Mune dated 14 April 2023 (‘Mune Affidavit’) and the bundle of documents exhibited thereto (‘Mune Exhibit Bundle’). Ms Mune is a law clerk at the offices of Citi-Con’s solicitors, Eidelweisz Lawyers;[11]
(b) Annette Weisz dated 4 May 2023 (‘Weisz Affidavit’) and the bundle of documents exhibited thereto. Ms Weisz is the solicitor at Eidelweisz Lawyers with carriage of the matter; and
(c) Annette Weisz dated 10 May 2023 and the bundle of documents exhibited thereto.
[11]Affidavit of Service of Adriana Mune dated 14 April 2023, 1 (‘Introduction’) (‘Mune Affidavit’).
Ms Mune’s evidence is that she served a copy of the Originating Application and the Smith Affidavit on the respondent on 17 March 2023 by sending those documents by express post to the respondent’s registered office at Wilckens Roche Lawyers, 43 Ferguson Street in Williamstown, Victoria.[12]
[12]Mune Affidavit, [5]. See also copies of the documents served at pages 21-31 of the bundle of documents exhibited to the Mune Affidavit (‘Mune Exhibit Bundle’).
Ms Mune’s evidence is that, by email on 10 March 2023, she also sent the Originating Application and Smith Affidavit via email to Moray & Agnew,[13] the respondent’s last solicitors on the record for the arbitration proceedings. By email to the Court dated 27 April 2023, Moray & Agnew confirmed that the firm had not filed a notice of appearance in this proceeding and that the firm did not act for the respondent in relation to this application.[14]
[13]Mune Affidavit, [4].
[14]See email dated 27 April 2023 from Melissa Passarelli of Moray & Agnew Lawyers to ‘Supreme Court‑Justice Croft Chambers ([email protected])’.
Ms Weisz’s evidence is that the Court’s orders of 28 April 2023 were served on the respondent on 1 May 2023 by express post to the respondent’s registered office.[15]
[15]Affidavit of Service of Annette Weisz dated 4 May 2023, [4] (‘Weisz Affidavit’).
No appearance has been filed on behalf of the respondent in this proceeding. Counsel is instructed that the respondent has not otherwise communicated with Citi‑Con or Citi‑Con’s solicitors in relation to this application.
As indicated previously, the respondent did not file any appearance in this proceeding and did not attend the hearing of this application.
Conclusion
For the preceding reasons I find that the applicant, Citi‑Con, has satisfied the requirements of s 35. The relief sought in the Originating Application should be granted. Orders to this effect were made at the hearing of the matter on 11 May 2023 on the basis that reasons would be published in due course.
---
0
0
0