Lieschke v Lieschke

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Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Lieschke v Lieschke [2023] NSWCA 241
Hearing dates: 12 July 2023
Date of orders: 13 October 2023
Decision date: 13 October 2023
Before: Leeming JA at [1];
Payne JA at [2];
Beech-Jones JA at [3]
Decision:

(1)   Grant the applicants leave to appeal.

(2)   Direct the applicants file within 7 days a notice of appeal in the form of the draft amended notice of appeal.

(3)   Allow the appeal and:

(a)   Set aside the orders made by the primary judge on 16 December 2022 and 16 February 2023;

(b)   In lieu thereof, order that the proceedings be dismissed.

(4)   Order the first respondent to pay the applicants’ costs of the proceedings at first instance and in this Court.

Catchwords:

COMMERCIAL ARBITRATION — appeal against decision to set aside arbitral award — dissolution of family farming partnership — parties retained accountants to review partnership accounts — respondent filed amended statement under s 23(1) of Commercial Arbitration Act 2010 (NSW) seeking finding that certain properties were partnership assets and variations to partnership accounts — parties otherwise assumed correctness of partnership accounts — interim award rejected claim that properties were partnership assets — respondent retained new solicitors and additional accountant — new accountant contended for completely different accounting approach — respondent sought to introduce new “case” based on new accountant’s report into accounting conclave convened between existing accountants to resolve remaining accounting issues — no application to amend statement under s 23(1) — arbitrator made order precluding existing accountants from conferring with new accountant — final award made — primary judge held award should be set aside on basis that respondent was unable to present his case and award was contrary to public policy — Commercial Arbitration Act 2010 (NSW), ss 34(2)(a)(ii) and (b)(ii) — reasonable opportunity to present a “case” does not extend to putting an available case not adverted to in statement filed under s 23(1) nor sought to be subject to amendment under s 23(3) — amended points of claim and submissions identified each party’s “case” and issues in dispute — entitlement to reasonable opportunity does not protect a party from their own “strategic choices” — leave to appeal granted — appeal allowed — proceedings seeking to set aside arbitral award dismissed — respondent to pay applicants’ costs

Legislation Cited:

Arbitration Act 1974 (Cth)

Commercial Arbitration Act 2010 (NSW)

International Arbitration Act 1974 (Cth)

Supreme Court Act 1970 (NSW)

Cases Cited:

Aircraft Support Industries Pty Ltd v William Hare UAE LLC [2015] NSWCA 229; (2015) 298 FLR 183

Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Colin Joss & Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 735

Lieschke v Lieschke [2022] NSWSC 1705

Lieschke v Lieschke(Costs) [2023] NSWSC 92

Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2018] QCA…

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Details
Case
[2023] NSWCA 241
Decision Date

CaseChat Overview and Summary

The applicants, Lieschke and Lieschke, appealed to the Court of Appeal of New South Wales against a primary judge's decision to set aside an arbitral award. The dispute arose from the dissolution of a family farming partnership. The respondent, also Lieschke, had filed an amended statement under section 23(1) of the *Commercial Arbitration Act 2010* (NSW) seeking a determination that certain properties were partnership assets and variations to the partnership accounts. The parties had otherwise proceeded on the assumption that the partnership accounts were correct, and an interim award had already rejected the respondent's claim regarding the properties.

The central legal issues before the Court of Appeal were whether the primary judge erred in setting aside the arbitral award on the grounds that the respondent was unable to present his case and that the award was contrary to public policy, pursuant to sections 34(2)(a)(ii) and 34(2)(b)(ii) of the *Commercial Arbitration Act 2010* (NSW). Specifically, the court considered whether the arbitrator's order precluding the respondent's new accountant from conferring with the existing accountants constituted a denial of the respondent's right to present his case, and whether the respondent's attempt to introduce a new accounting approach constituted an "available case" that he was denied the opportunity to present.

The Court of Appeal reasoned that the entitlement to a reasonable opportunity to present a case does not extend to introducing a new case that was not adverted to in the initial statement or sought to be amended under section 23(3) of the Act. The amended points of claim and submissions had clearly identified the parties' respective cases and the issues in dispute. The court held that the respondent's inability to present his new accounting approach was a consequence of his own strategic choices, including his decision to retain new legal and accounting advisors late in the proceedings and his failure to seek formal amendment of his statement of claim. The arbitrator's order was therefore not a denial of the respondent's right to present his case, nor was the final award contrary to public policy.

Consequently, the Court of Appeal allowed the appeal, set aside the primary judge's orders, and dismissed the proceedings seeking to set aside the arbitral award. The respondent was ordered to pay the applicants' costs of both the proceedings at first instance and the appeal.

Orders

Orders of the court

(1) Grant the applicants leave to appeal.

(2) Direct the applicants file within 7 days a notice of appeal in the form of the draft amended notice of appeal.

(3) Allow the appeal and:

(a) Set aside the orders made by the primary judge on 16 December 2022 and 16 February 2023;

(b) In lieu thereof, order that the proceedings be dismissed.

(4) Order the first respondent to pay the applicants’ costs of the proceedings at first instance and in this Court.

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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