Hyundai Engineering and Steel Industries Co Ltd v Alfasi Steel Constructions (NSW) Pty Ltd

The case of Hyundai Engineering and Steel Industries Co Ltd v Alfasi Steel Constructions (NSW) Pty Ltd involves an application by the respondent, Alfasi Steel Constructions, to have the proceedings for the enforcement of an international arbitration award adjourned. The parties had entered into a sub-subcontract for steel works at the Sydney International Convention, Exhibition and Entertainment Precinct Project. Hyundai, the award creditor, obtained an arbitration award in Singapore against Alfasi, the award debtor. Alfasi sought to set aside the award in part in the High Court of Singapore, while also applying for an adjournment in Australia. The primary legal issue before the court was whether the proceedings to enforce the award should be adjourned, given that the award debtor was seeking to set aside the award in part in the High Court of Singapore.

The court considered the application of section 8(8) of the International Arbitration Act 1974 (Cth) and the principle that the enforcing court must consider the ease or difficulty of enforcement of the award, including whether the award debtor has assets within the jurisdiction. The court noted that the award debtor had established that its case was, at least, arguable. However, the court held that the award creditor's position should be secured by requiring the award debtor to provide security for the full amount of the award plus interest. The court was of the view that the award debtor's financial position was not adequately disclosed and that the award creditor's position could be prejudiced if the award debtor pursued its proceedings in Singapore without providing security. The court granted the adjournment on the condition that the award debtor provided security for the full amount of the award plus interest.

The court further held that the security should be in a form that can be readily accessed, such as payment into court, payment into an interest-bearing account under the control of the award debtor's solicitors, or an on-demand bank guarantee. The court also held that the award debtor could agree in writing to vary the secured sum and the form of security provided. The court ordered that the award debtor pay the award creditor's costs of and incidental to the interlocutory application. The orders were made pursuant to subsection 8(8) of the International Arbitration Act 1974 (Cth) and the court's general power to control its own process.