Kai Design and Constructions Pty Ltd v Mi - [2016] ACTSC 269

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kai Design & Constructions Pty Ltd v Mi
Citation:	[2016] ACTSC 269
Hearing Dates:	16, 18 August 2016
DecisionDate:	19 August 2016
Before:	Mossop AsJ
Decision:	See [51]
Catchwords:	PRACTICE AND PROCEDURE – Application for a freezing order – Ancillary to arbitration proceedings – Awaiting delivery of awards – A good arguable case – Whether there is a risk of dissipation of the assets – Evidence insufficient to warrant freezing order – No ancillary orders
Legislation Cited:	Building Act 2004 (ACT) Commercial Arbitration Act 1986 (ACT), ss 35, 36, 37, 46, 47, 49 Court Procedures Rules2006 (ACT), rr 741-743
Cases Cited:	Chan v Kai Design and Construction Pty Ltd [2014] ACTSC 86 Chan v Wood [2013] ACTSC 228 Finn v Carelli [2007] NSWSC 261 Lock International Plc v Beswick [1989] 1 WLR 1268 Maples Winterview Pty Ltd v Liu [2015] ACTSC 58 Ninemia Maritme Corp v Trave Schiffahrtsgesellschaft [1984] 1 All ER 398 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Raukura Moana Fisheries Ltd v The Ship Irina Zharkikh [2001] 2 NZLR 801 Ryder v Frohlich (No 2) [2006] NSWSC 1325 Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd [2016] ACTSC 49
Parties:	Kai Design & Constructions Pty Ltd (First Plaintiff) Zheng Kai Li (Second Plaintiff) Wai Man Mi (First Defendant) Ling Chan (Second Defendant) William Timothy Sullivan (Third Defendant)
Representation:	Counsel Mr W Sharwood (Plaintiffs) Self-represented (First and Second Defendants) Self-represented (Third Defendant)
Solicitors Baker Deane & Nutt (Plaintiffs) Self-represented (First and Second Defendants) Self-represented (Third Defendant)
File Number:	SC 346 of 2016

MOSSOP AsJ:

Background

These proceedings arise out of the construction of two residential dwellings, one in Franklin and one in Harrison. The construction of those dwellings has given rise to two previous decisions of the Court: Chan v Wood [2013] ACTSC 228 and Chan v Kai Design and Construction Pty Ltd [2014] ACTSC 86. At the commencement of the reasons given in the latter case I made the following observation:

This is an unfortunate case in that it involves two arbitrations relating to construction contracts for two single residential dwellings. A different aspect of the case has previously been subject of a decision of this Court: see Chan v Wood [2013] ACTSC 228. While the amount at stake in the arbitration proceedings is significant for the parties and significant in terms of the quantum of the original building contracts, the amount at stake are not such as to be able to support protracted litigation between the parties. Notwithstanding some considerable encouragement from me, the parties have been, as yet, unable to reach any settlement of the proceedings. In those circumstances, the parties are entitled to have their disputes resolved by arbitration and, to the extent necessary, by decisions of the Court. That is a course which involves very significant risks for the parties, not the least of which is the fact that the quantum of legal fees incurred on both…

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.

Continue reading Kai Design and Constructions Pty Ltd v Mi

Details

AGLC: Kai Design and Constructions Pty Ltd v Mi [2016] ACTSC 269
Case: [2016] ACTSC 269
Decision Date: 19 August 2016

CaseChat Overview and Summary

The applicant, Kai Design and Constructions Pty Ltd, sought a freezing order against the respondent, Mi, in the Federal Court of Australia. The application was ancillary to arbitration proceedings, and the parties were awaiting the delivery of awards. The primary concern was the potential dissipation of the respondent's assets, which could impact the applicant's ability to enforce any future arbitration awards.

The court was required to determine whether the applicant had established a good arguable case that warranted the granting of a freezing order. This involved assessing the risk of dissipation of the respondent's assets and whether the applicant had provided sufficient evidence to warrant such an order. The court noted that the applicant had not provided compelling evidence of a significant risk of asset dissipation, which was a critical factor in its decision.

In evaluating the evidence, the court concluded that the applicant had not demonstrated a good arguable case. The evidence presented was insufficient to establish a risk of asset dissipation that would justify the imposition of a freezing order. Consequently, the court dismissed the application for a freezing order and made no ancillary orders.

The orders made by the court were straightforward, with the primary decision being the dismissal of the application for a freezing order. The court did not issue any ancillary orders as the applicant had not met the necessary threshold for such relief. The decision highlights the importance of providing robust evidence to support applications for freezing orders, particularly in the context of ancillary applications to arbitration proceedings.

Orders

Orders of the court

See [51]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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