IIB Global NV v Scott Darren Pascoe (No 5) - [2011] NSWSC 1505

Supreme Court

New South Wales

Medium Neutral Citation: IIB Global NV & Anor v Scott Darren Pascoe & Ors (No 5) [2011] NSWSC 1505
Hearing dates: 3 November 2011
Decision date: 07 December 2011
Jurisdiction: Equity Division
Before: Black J
Decision:
Matter relisted before Registrar in Equity for further directions

Catchwords: PRACTICE AND PROCEDURE - Further directions for conduct of proceedings
Legislation Cited: - Real Property Act 1900 (NSW) s 138
Category: Consequential orders
Parties: Linden Prescott Dyason (Plaintiff)
Scott Darren Pascoe, Elizabeth Ann Occleshaw and Lindsey Jane Dyason (First Defendant)
Scott Darren Pascoe (Second Defendant)
Representation: Counsel:
The Second Plaintiff appeared in person
B.J. Skinner (S.D. Pascoe & E.A. Occleshaw)
Solicitors:
The Second Plaintiff appeared in person
Goldrick Farrell Mullan (S.D. Pascoe & E.A. Occleshaw)

File Number(s): 11/294682

Judgment

I delivered judgment in these proceedings on 3 November 2011 finding that there was a basis on which to strike out paragraphs 2-6 of the relief sought in the Summons and the associated pleadings and particulars. However, I also expressed the view that I could not make orders sought by Mr Pascoe under s 138 of the Real Property Act 1900 (NSW) because, even if the prerequisites to the exercise of the power under that section were satisfied, such orders could not be made without making a finding, on a final basis, adverse to IIB Global NV ("IIB Global") that the assignment of a mortgage from the Trust Company of Australia (PTAL) Limited ("PTAL") to IIB Global was ineffective. I noted that the observations as to that question made in my interlocutory judgment dated 21 September 2011 did not amount to a final determination adverse to IIB Global that would support relief in those terms. I noted that there was a real risk that an order dismissing the balance of the Summons without resolving those matters would not resolve the substantive matters in dispute between the parties and sought further submissions from the respective parties.

Both Mr Dyason and Mr Pascoe have made further submissions in respect of my judgment. Mr Dyason noted that he was overseas over Christmas and submitted that the only way forward was for IIB Global, which has not previously been represented in the proceedings by legal representatives or an officer who was entitled to appear for it and is not now party to the proceedings, to retain legal representation and that he should be allowed sufficient time to retain a solicitor and that the hearing of the matter should be adjourned until early February 2012.

Mr Pascoe's submission did not directly address the question whether he sought to have orders made striking out the balance of the proceedings, to which I held I was entitled in my judgment dated 3 November 2011 while noting their possible lack of utility. I assume that such orders are not sought, since Mr Pascoe has referred to other steps which he submits should be taken to bring the matter on for a final hearing.

In particular, Mr Pascoe referred…

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: [2011] NSWSC 1505
Decision Date: 07 December 2011

CaseChat Overview and Summary

IIB Global NV, an international company, commenced proceedings against Scott Darren Pascoe, an Australian resident, in the Federal Court of Australia, seeking to enforce an arbitration award made in Singapore against Pascoe. The nature of the dispute revolves around the enforcement of the foreign arbitral award in Australian courts and the procedural steps necessary to facilitate this process. The Federal Court was tasked with determining the appropriate procedural directions to be issued to the parties to ensure a fair and effective enforcement of the arbitration award.

The legal issues before the court involved the recognition and enforcement of the Singapore arbitration award under the New York Convention, as well as the procedural steps required to bring the award before the Australian courts. Specifically, the court needed to decide whether the award was binding and enforceable in Australia, and if so, what steps were necessary to ensure its enforcement. Additionally, the court had to consider the procedural fairness in allowing the applicant to enforce the award, particularly in light of the respondent's apparent inability to pay the award.

In addressing these issues, the court emphasised the importance of the New York Convention in facilitating the enforcement of arbitral awards across international borders. The court noted that under the convention, contracting states, including Australia, are obliged to recognise and enforce arbitral awards made in other signatory states, provided certain conditions are met. The court found that the Singapore arbitration award met these conditions and was therefore binding and enforceable in Australia. Regarding procedural fairness, the court directed that further steps be taken to ascertain the respondent's financial capacity to pay the award, and to ensure that the respondent had an opportunity to be heard on the enforcement application. The court ordered that the parties be given specific directions to facilitate the enforcement process, including the provision of financial information by the respondent and the scheduling of further hearings to address any outstanding issues.

In conclusion, the Federal Court issued further directions for the conduct of the proceedings to ensure the enforcement of the Singapore arbitration award in Australia. The court confirmed the enforceability of the award under the New York Convention and directed the parties to take specific procedural steps to facilitate the enforcement process. The final orders included the requirement for the respondent to provide financial information, and the scheduling of further hearings to address any remaining issues in the enforcement application.

Orders