Kai Design and Constructions Pty Ltd v Mi
[2016] ACTSC 269
•19 August 2016
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 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 sides will very soon dwarf the amounts at stake and will render it even more difficult for the parties to achieve some reasonable settlement.
My pessimistic prediction has proved to be accurate. Upon the initiative of the builder, the parties referred their disputes under the two different contracts to arbitration. Arbitration was a permitted, but not mandated, form of dispute resolution under the relevant contracts. That arbitration has proceeded over 13 hearing-days. Costs incurred on both sides for lawyers and the arbitrator are well in excess of $560,000. If any economy in proceeding by way of arbitration rather than litigation was anticipated, it has proved illusory. The case illustrates the need for alternative means of resolving disputes over residential building contracts and the inadequacy of standard form contracts which, in the absence of legislative compulsion, do not provide for efficient dispute resolution procedures.
In the reasons that follow I will identify the plaintiffs collectively as the Builder and the first and second defendants as the Owners. That is inaccurate because the contracts for the construction of the two dwellings were with the first and second defendants, separately. The dwelling in Franklin involved a contract between the second plaintiff, Mr Li, and the first defendant, Mr Mi. The dwelling in Harrison involved a contract between the first plaintiff, Kai Design & Constructions Pty Ltd (KDC Pty Ltd), and the second defendant, Ms Chan. The identity of the contracting party on the Builder’s side for the Franklin contract was the subject of substantial dispute during the course of the arbitration, which was initially commenced on the basis that the first plaintiff was the contracting party but subsequently amended so that the claim was made by Mr Li. Having said that, for most purposes it will be sufficient to refer to the parties collectively as the Builder and the Owners.
Application made
The present position is as follows. On 19 November 2015 the arbitrator directed the parties to provide an additional $36,000 each in order to cover his anticipated fees up until the conclusion of the arbitration. The arbitration was anticipated to include an interim award dealing with the substantive issues in both arbitrations and then final awards addressing matters including costs in the light of the terms of the interim awards.
While the Builder has paid the amount that it was directed to pay, the Owners have failed to pay the amount that they were directed to pay. The arbitrator has declined to deliver the awards until his fees are secured. The Builder has applied for orders so as to break this impasse. The Builder has also applied for a freezing order, preventing the Owners from diminishing their assets below $925,000. That amount is calculated to accommodate the full scope of the Builder’s claim against the Owners including interest and costs.
The arbitrator was joined as a party to the proceedings, made some short submissions and then was excused. He indicated that he was in a position to finalise the interim awards within a few days if his fees were secured or if he was ordered to produce the award.
Statutory provisions
The provisions of the Commercial Arbitration Act 1986 (ACT) (CA Act) most relevant to the present application are ss 35, 37 and 47. Those sections provide:
35 Assessment of arbitrator’s or umpire’s fees or expenses
(1) If an arbitrator or umpire refuses to deliver an award except on payment of the fees and expenses demanded by the arbitrator or umpire, the court may, on application made by a party to the arbitration agreement, order that—
(a) the arbitrator or umpire deliver the award to the applicant on such terms as to the payment of the fees and expenses of the arbitrator or umpire as the court considers appropriate; and
(b) the fees and expenses demanded by the arbitrator or umpire be assessed by the court.
(2) Notwithstanding that the amount of the fees or expenses of an arbitrator or umpire may be fixed by the award, those fees or expenses may, on the application of a party to the arbitration agreement or of the arbitrator or umpire, be assessed by the court.
(3) The arbitrator or umpire and any party to the arbitration agreement shall be entitled to appear and be heard on any assessment under this section.
(4) Where the fees and expenses of an arbitrator or umpire are assessed in the court, the arbitrator or umpire shall be entitled to be paid by way of fees and expenses only such sum as is found reasonable by the assessment.
37 Duties of parties
The parties to an arbitration agreement shall at all times do all things which the arbitrator or umpire requires to enable a just award to be made and no party shall wilfully do or cause to be done any act to delay or prevent an award being made.
47 General power of court to make interlocutory orders
The court shall have the same power of making interlocutory orders for the purposes of and in relation to arbitration proceedings as it has for the purposes of and in relation to proceedings in the court.
The plaintiffs also made specific reference to ss 47 and 49 in support of their application for an order directing the first and second defendants to pay the arbitrator’s fees.
The making of freezing orders is addressed by rr 741-743 of the Court Procedures Rules2006 (ACT) (CPR).
Payment of arbitrator’s fees and delivery of decision
Orders sought
In relation to payment of the arbitrator’s fees and the delivery of his decisions the Builder sought a number of orders including orders in the alternative.
Order 3 in the further amended originating application sought an order under s 35(1)(a) of the CA Act that the arbitrator deliver his awards within seven days.
Orders 4, 4A and 5 sought in the further amended originating application were orders requiring the Owners to pay a total of $36,000 into the nominated trust account for the arbitrations (order 4). If they did not do so then they were required to pay that amount to the Builder upon the Builder undertaking to pay it to the arbitrator. In the event that the amount required to be paid by order 4 or 4A was not paid, then the Builder would be at liberty under order 5 to apply for an order that three identified properties be sold and that the proceeds be used to satisfy the requirement of the arbitrator for an additional payment of $36,000.
In the alternative to that regime, the Builder has sought an order (order 5A) permitting it to use some of the security which it was required to provide for the Owners’ costs of the arbitrations to the arbitrator. In my earlier decision in Chan v Kai Design and Construction Pty Ltd [2014] ACTSC 86 I had ordered that the Builder provide $80,000 by way of security for the costs of the Owners. That money is in an account maintained by the solicitors for the Builder. The effect of order 5A would be to have the Builder pay more than its fair share of the amount required to be paid for the arbitrator’s fees, but to do so in a manner which did not require it to find further funds.
Submissions
The arbitrator submitted that, of the overall amount that he had requested as security for his fees, only $26,000 per party, out of the $36,000 per party, was required as security up to the point where the interim awards would be delivered. The balance of the fees were fees which were anticipated to be required in order to make the final awards which were anticipated to require some argument in relation to the question of costs.
The Builder submitted that one or other of the orders it had proposed would be an appropriate means of resolving the impasse over the arbitrator’s fees. The Builder submitted that there was no evidence that the Owners were unable, as opposed to unwilling, to pay the additional amount pointing to evidence that Ms Chan had recently acquired a residential property which was apparently unencumbered. It also pointed to the evidence that the property owned by Mr Mi at Franklin and another residential property which he owned had both been mortgaged to the National Australia Bank were of substantial value and there was no evidence that funds were unavailable from him.
The Owners’ submissions raised a number of different points.
(a)They pointed to the very significant fees charged by the arbitrator for a hearing which extended over 13 days.
(b)They pointed to the arbitrator’s decision not to accept the submission that particular rules of the Institute of Arbitrators and Mediators Australia should be applied which would permit the capping of legal and arbitrators fees. The submission was made that this application was incorrectly refused.
(c)They submitted that Mr Mi had put forward a reasonable proposal that the arbitrator deliver one of the awards using the fees that had already been paid by the Builder.
(d)Mr Mi submitted that he would be making an application to terminate the arbitration because of inordinate delay under s 46 of the CA Act. He made an oral application for an order to that effect which I refused to allow him to pursue. I indicated that if he was to pursue such an order that he would need to proceed by way of originating application.
(e)Mr Mi also sought to make an application for an increase in the security provided by the Builder. Once again I did not permit that to be made by oral application, indicating that if he wished to seek an order under s 47 of the Act he needed to do so by originating application. He pointed to the fact that KDC Pty Ltd had not produced financial records which he had requested.
Decision
Under the terms of the respective contracts the parties are obliged to comply with directions of the arbitrator in relation to providing security for the costs of the arbitration: cl 30(f). The present position is that the Owners have failed to pay an amount that they have been directed to pay for more than eight months. Having regard to the limited evidence of their financial circumstances and the absence of any evidence indicating an inability to pay I conclude that they have made a decision to not pay the amount required by the arbitrator.
The subparagraphs of s 35(1) are linked by the word “and”. That indicates that where an order is made under s 35(1)(a) then there is a requirement that the fees and expenses demanded by the arbitrator be assessed by the court. As a consequence, if the order sought by the plaintiff was made then there would need to be a further process involving an assessment of the arbitrator’s fees. That is distinct from the power in s 35(2) for a party to apply to have the arbitrator’s fees assessed by the Court.
The submissions made by the Builder relied upon a combination of ss 37, 46, 47 and 49 of the Act for the power to make an interlocutory order compelling payment of the fees of an arbitrator as contemplated by proposed order 4. The submission was of some complexity and no authority was provided demonstrating the availability of such power in circumstances such as the present.
In my view, having regard to the availability of money paid by the Builder as security for the Owners’ costs, in circumstances where the Owners have failed to meet their obligations to pay the additional amount to the arbitrator it is appropriate to permit the Builder to pay the amount necessary to permit the release of the awards. While that does impose an additional burden upon the Builder, that burden will be a relatively modest burden (in the scheme of the costs incurred so far in this case) and will not involve the Builder finding additional money. It will reduce the security available to the Owners, but that reduction in security only arises because of their breach of their obligation to pay funds in accordance with the direction of the arbitrator.
Adopting this course is more desirable than adopting a more complex approach contemplated involving an order compelling payment of the fees by the Owners, ordering the delivery of the award by the arbitrator and then permitting recovery by the Builder of the Owners’ portion of the arbitrator’s fees through a seizure and sale process. That option would involve a requirement of determining first whether such compulsive orders were empowered by some combination of ss 35, 36, 46 and 47 of the Act and would, because of the operation of s 35(1)(b), inevitably involve the assessment of the arbitrators fees by the Court. In a case which has already taken up an inordinate amount of time and cost there is, in my view, a significant value in speed and simplicity.
As I understood the arbitrator’s position, receiving a total of $52,000 would provide security for his fees up to the point of delivering the interim awards. Therefore, the Owners’ share would be $26,000 rather than the $36,000 originally directed to cover the whole of the balance of the arbitration. However, if the amount is in fact to be paid by the Builder then it is appropriate to take into account the amount already paid by the Builder towards the arbitrator’s fees. Having already paid $36,000 as directed, in order to have paid a total of $52,000 an additional amount of only $16,000 would be required in order to have the arbitrator release the interim awards dealing with the substance of the disputes. However, in order to reduce the likelihood of a further application to be made upon the release of the interim awards I will permit (but not compel) the security to be reduced by up to $26,000. It may be that the parties and the arbitrator are able to manage the resolution of the costs issue in a way that confines the need for further provision of security for the arbitrator’s costs and hence avoid further disputation over that issue.
I will therefore make an order that permits the security given by the Builder in proceedings SC 101 of 2014 to be reduced by payment out to the Builder’s solicitor of an amount not exceeding $26,000 on her undertaking to pay funds to the nominated trust account for the arbitration.
Freezing order
Relevant principles
The relevant provisions of the rules relating to freezing orders are set out in the decision of Refshauge J in Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd [2016] ACTSC 49 at [40]-[44] (Supabarn). His Honour at [44] summarised the effect of those rules as follows:
It can be seen from these rules that there are two tests that an applicant for a freezing order must satisfy: that the applicant has a good arguable case, in this case on an accrued cause of action, and that there is a danger that any judgment on that cause of action will be unsatisfied because of one or more of the reasons set out in r 743(4) of the Court Procedures Rules. The court at all times, however, retains a discretion not to make such an order.
The reference in the CPR to a good arguable case has been interpreted to provide a test which is less stringent than requiring proof on the balance of probabilities – less demanding than the test of a prima facie case, but more demanding than the test of a serious question to be tried: Supabarn at [47]-[50].
In relation to the existence of a danger that any judgment on the cause of action would be unsatisfied, it is not enough simply to assert a risk that the assets will be dissipated, but rather it must be proved by “solid evidence”: Ninemia Maritme Corp v Trave Schiffahrtsgesellschaft [1984] 1 All ER 398 at 406; Supabarn at [57]. It is not necessary to prove an intention of evading a judgment and it is sufficient to show that the course on which the respondent proposes to embark is objectively speaking calculated to have that effect: Finn v Carelli [2007] NSWSC 261 at [4]. Dissipation of assets will not be inferred merely because a party plays its financial cards close to its chest: Raukura Moana Fisheries Ltd v The Ship Irina Zharkikh [2001] 2 NZLR 801 at [122]. However, a prima facie case of fraudulent misappropriation of assets or serious wrongdoing or clear evidence of dishonest conduct will support an inference that there is a risk that a party’s assets will be dissipated: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 326; Lock International Plc v Beswick [1989] 1 WLR 1268 at 1280.
The order is not intended to provide security for a party that any judgment in its favour will be satisfied. Rather it is an exceptional remedy designed to prevent an abuse of process: Ryder v Frohlich (No 2) [2006] NSWSC 1325 (Ryder).
Clearly, in judging where the balance of convenience lies it will be necessary to have regard to the strength of the case of the party seeking the order as well as the extent of any risk of the dissipation of assets. The matters which need to be taken into account in assessing the balance of convenience will otherwise depend upon the circumstances of the case and the likely effect of the orders if made.
Evidence in relation to a good arguable case
The Owners contended that the Builder had not demonstrated a good arguable case. A substantial portion of the oral submissions were directed to the proposition that the claim by the Builder was scandalous or vexatious.
The evidence before me did not extend to the pleadings in the two arbitrations. I was only provided with a basic outline of the issues in dispute in the arbitrations and some specific submissions directed to matters in contention. Therefore it is only possible to assess the competing claims of the parties at a relatively generic level.
The Franklin contract was with Mr Mi. It was entered into in November 2011. There was an issue as to whether or not the builder was Mr Li or the company KDC Pty Ltd. Part way through the arbitration the claimant was changed from KDC Pty Ltd to Mr Li. There remains an issue arising from the fact that the builder notified and approved under the Building Act 2004 (ACT) was KDC Pty Ltd. Because the pleadings and submissions were not before me I cannot say precisely what arises from this except to say there is potential for significant complications so far as recovery by Mr Li is concerned. The total contract price was $500,000. Unusually the payment schedule permitted $400,000 to be paid at the end of the project. There was a substantial delay in carrying out construction work on the site because of the issuing of a stop work notice and the need for development approval to be obtained when it was initially thought that it was not required. Mr Mi had paid the first two payment stages totalling $50,000, but refused to pay the third payment stage which was described in the contract as “wall and roof framing completed”. Mr Mi purported to terminate the contract on 21 March 2013. That was accepted as a repudiation of the contract and Mr Li claimed damages. One of the significant issues in the claim is whether or not the relevant stage had been completed. Mr Mi made a number of submissions directed to why this was not case. He also made submissions as to whether or not the profit component of the building contract which had been claimed in the arbitration would be recoverable in the light of the evidence before the arbitrator. Mr Mi brought a cross-claim in relation to damages arising from the cost to complete the building project.
In relation to the Harrison property the builder was KDC Pty Ltd and Ms Chan was the contracting party. The contract was entered into in September 2012. It was a much smaller contract having a total contract value of $200,800. The dispute was whether the payment stage described as “lock-up: roof covering, external wall completed” was met entitling KDC Pty Ltd to a payment of $70,280 out of the total contract price of $200,800. Ms Chan had already paid $60,240 in relation to previous payment stages. Ms Chan also appears to have brought a cross-claim in relation to the cost to complete the Harrison project. The arbitration in relation to the Harrison property took much less of the arbitrator’s time and the arbitrator’s fees in relation to that arbitration only represented approximately 12% of the overall amount.
It is inappropriate for the purposes of the present application to attempt, even if it was possible, to assess the merits of the competing contentions. As the decision in Maples Winterview Pty Ltd v Liu [2015] ACTSC 58 makes clear, contests over whether or not a payment stage has been reached will turn on precise findings of fact about the detail of the construction work. Those contested findings of fact can have dramatic consequences having regard to the fact that one party alleges a repudiation and the other a termination. In the present case I accept that the builder in each arbitration has a good arguable case for the purposes of the rule.
The real question is whether or not the Builder has established that there is a risk of the dissipation of assets that warrants the making of a freezing order and that the balance of convenience otherwise favours the making of a freezing order.
Evidence in relation to assets
The evidence relied upon by the Builder in support of its contention that there was a risk of the dissipation of assets contained a number of elements. I will summarise those elements below.
The Builder had an entitlement under the building contract to place a caveat over the property the subject of the building contract: cl 31. The Builder placed a caveat over the Harrison property on 6 June 2013. On 19 November 2014 an application for the lapsing of the caveat was made to the Registrar General. Consistently with the terms of the caveat notice that application was given to the former solicitors for the Builder. The former solicitors for the Builder did not forward the notice to the current solicitors or otherwise draw the existence of the application to the attention of the Builder. As a consequence Ms Chan was notified by letter from the Registrar General dated 19 December 2014 that the caveat had lapsed. On 27 July 2015 she sold the Harrison property for $383,000.
Notwithstanding a request made by the solicitors for the Builder on 8 April 2016 she has not provided details of her assets to the solicitors.
Exhibit 1 shows that as at 16 August 2016 Ms Chan was the registered proprietor of property in a units plan in Franklin. She appears to have become registered proprietor on 4 August 2016 by reason of the transfer lodged on 13 July 2016.
In relation to the Franklin property that was the subject to the caveat lodged by KDC Pty Ltd and not by Mr Li. Having regard to the fact that it now appears to be accepted that Mr Li was the contracting party, that caveat was erroneously lodged. On 27 March 2015 an application for the lapsing of the caveat was lodged and because of the failure on the part of the Builder’s previous solicitors the caveat lapsed. Mr Mi was notified by letter dated 29 April 2015 that it had lapsed. On 4 November 2015 a mortgage to the National Australia Bank (NAB) was registered. The property is valued at between $970,000 and $1 million. There is no evidence of the extent of any loan secured by the mortgage to the NAB.
Mr Mi is also the registered proprietor of a property in Ormiston Street in Harrison which is valued at $620,000 to $650,000. That property was subject to a mortgage to the NAB which was registered on 19 May 2016. There is no evidence as to the amount of any loan secured by this mortgage.
Mr Mi has not provided any disclosure of his assets to the Builder’s solicitors notwithstanding a request made on 8 April 2016.
Conclusion in relation to freezing order
The position in relation to Ms Chan is that because of the default by the Builder’s previous solicitors she has been able to sell the property that was the subject of the building contract and acquire a new property which is unencumbered. The position in relation to Mr Mi is that because of the default of the Builder’s previous solicitors he has been able to encumber the Franklin property to an unknown extent. He also has other identified real estate within the Territory which is also encumbered to an unknown extent.
In my view, the evidence is insufficient to establish a risk of dissipation of assets so as to amount to an abuse of process which ought to be restrained by a freezing order.
Both Owners clearly have real property assets within the jurisdiction. While Ms Chan has sold the property the subject of the arbitration proceedings she has acquired other identified real property in the Territory. The real property of Ms Chan appears to be unencumbered. The extent of any encumbrance over the real property assets of Mr Mi since the commencement of the arbitration cannot be identified on the evidence.
The other matters of which there was evidence do not support the making of a freezing order:
(a)Both Mr Mi and Ms Chan are residents of the Territory. Although both appear to be of Chinese ethnicity there is no evidence of circumstances which would demonstrate a risk that their assets may be put beyond the reach of any enforcement of an arbitrator’s award that went beyond the risk associated with any other resident of the territory.
(b)The case is a straightforward residential building contract dispute and not one involving fraud or dishonesty where because of the subject matter of the proceedings and increased risk of dissipation of assets might be presumed.
(c)The fact that the Owners have refused to voluntarily provide disclosure of their assets or an explanation of the transactions is not of itself sufficient to indicate the dissipation of assets or that they are being put beyond reach. In the absence of a court order or some other legal obligation to make disclosure, at best their nondisclosure might make it easier to reach a finding if the evidence otherwise justified it.
(d)The significant period between the lapsing of the caveats and action to sell or encumber the relevant properties tends against the proposition that there has been an intention to put assets beyond reach. A rapid sale or encumbrance of the property immediately following the lapsing of the caveats might be more indicative of such a course of conduct.
(e)Freezing orders are not designed to simply provide security for a potential judgment creditor. Instead they are targeted at preventing an abuse of process. In the present case the builder was entitled to security for an amount claimed under the relevant building contract, but allowed that security to lapse and failed to take any steps which were open to it to reimpose that security.
(f)In the light of the orders made that would permit the arbitrator to give his decision it will only be a very short period until the outcome of the arbitration is known. The period will be as short as a few days. Having regard to the period that has elapsed prior to and following the making of the present application during which any dissipation of assets might have occurred the risks involved in a further short period during which the owners are unrestrained before the outcome of the arbitration is known appears to me to be small. There is certainly no evidence of any immediate intention to take steps that would need to be restrained in the short term.
(g)The mere fact that an order will only have effect for a relatively short period and for that reason may impose relatively little inconvenience upon the subject party is a factor to be taken into account, however, it must be remembered that the purpose of such an order is not to give an applicant security before judgment but only to prevent abuses of process: Ryder at [31].
For these reasons I do not consider it appropriate to make any freezing or ancillary order.
Had I been minded to make an order then there would have been necessary to consider the terms of any such order. The terms of the order which have been proposed have been drawn with little modification from the form of order provided in the relevant practice note relating to freezing orders. While these orders will be useful in cases warranting their detail and scope, it cannot be assumed that because they appear in a practice note they are inevitably suited to all cases. In my view, if I were to make orders then I would not make them in the elaborate form contended for by the Builder. Parties should be discouraged from adopting standard forms without properly applying professional judgment as to whether or not those forms are appropriate for the case at hand.
Had I been minded to make an order, the absence of evidence on the part of the Builder as to his or its asset position would not have prevented me from making a short term freezing order. Such evidence would be relevant to an assessment of the value of the plaintiff’s undertaking as to damages.
Other orders
An order relating to the identification of an address for service for both Owners was not opposed and I consider it to be within the scope of orders that may be made under s 47 of the CA Act.
In relation to costs I consider it appropriate to reserve the question of costs pending at least the delivery of the interim awards. The builder has only been partially successful on the present application and a substantial amount of the evidence and time taken with the hearing was spent upon the application for a freezing order in relation to which the defendant was unsuccessful. How this issue should be addressed in terms of a costs order may be influenced by the outcome of the arbitration proceedings.
Decision
The orders of the Court are:
1. The security given by the first plaintiff in proceedings number SC 101 of 2014 in this Court may be reduced by up to $26,000 by the payment of up to that amount to the plaintiff’s solicitor on her undertaking to pay the funds to the nominated trust account for the purposes of the arbitration.
2. Until a different physical address is given by notice signed by the relevant defendant served upon the other party to the arbitration and the arbitrator, the physical address for service of the first and second defendants for the purposes of arbitration is 6 Isaacson Street Franklin ACT 2913.
3. The application for freezing and ancillary orders is dismissed.
4. All questions of costs of the proceedings are reserved.
5. Either party has liberty to apply on seven days’ notice in relation to the costs of the proceedings not earlier than seven days after the delivery of interim awards in each arbitration.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 16 September 2016 |
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