Pavic & Pavic

Case [2018] FCCA 3386


FEDERAL CIRCUIT COURT OF AUSTRALIA

PAVIC & PAVIC [2018] FCCA 3386
Catchwords:
FAMILY LAW – Arbitration – where the wife objects to the registration of the arbitral award – where the bases for objection to the registration of the arbitral award are not specified within the Family Law Act 1975 – reference to the Commercial Arbitration Act 2010 as a grounds for objection to registration of the arbitral award – consideration of the circumstances in which the Court should set aside or review an arbitral award – determination of costs with respect to the arbitration.

Legislation:

Family Law Act 1975 ss.10L, 10M, 13E, 13K, 13J, 117 pt.XV

Family Law Regulations 1984 regs.67B, 67I, 67P, 67Q
Commercial Arbitration Act 2010 ss.33B, 34, 36
Federal Circuit Court Rules 2001 sch.1

Cases cited:

Braddon & Braddon [2018] FCCA 1845

TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of The Federal Court of Australia & Anor [2013] HCA 5
Autodesk Inc & Dyason(No 2) (1993) 111 ALR 385
Kowaliw & Kowaliw (1981) FLC 91-092
Larkden Pty Limited v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1331
Resort Condominiums International Inc v Bolwell (1993) 118 ALR 655 Deutsche Schachtbau-und Tiefbohr-Gessellschaft mbH v Ras Al-Khaimah National Oil Co [1990] 1 AC 295
Andent Pty Ltd v Thornhill Machine Tools Australia Pty Ltd [2014] VSC 647
Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436
Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326
Shimizu & Tanner [2011] FamCA 271
Mayne & Mayne [2011] FamCAFC 192
Robb & Robb (1995) FLC 92-555
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
Davida & Davida (Costs) [2011] FamCAFC 61
Harris v Caladine (1991) 172 CLR 84

Other articles cited:
Patrick Parkinson, ‘Family Property Arbitration: Exploring the New Potential’ (Paper presented at ESFLPG Weekend, Katoomba, June 2016) 9
Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017)
Justice Rares, ‘Is access to justice a right or a service’ (Paper presented at the Access to Justice – Taking the Next Steps Symposium, Monash University, 26 June 2015)
John Lurie, ‘Court Intervention in Arbitration: Support or Interference’ (2010) 76(3) The International Journal of Arbitration, Mediation and Dispute Management 447
Justice Croft, ‘Judicial Intervention in the Asia-Pacific Region’ (Paper presented at UNCITRAL-MOJ-KCAB Joint Conference: Arbitration Reform in the Asia Pacific Region: Opportunities and Challenges, Seoul, 11-12 November 2013)
Nigel Blackaby et al, Redfern and Hunter on International Arbitration (5th ed, Oxford University Press, 2009)

Applicant: MR PAVIC
Respondent: MS PAVIC
File Number: PAC 3217 of 2017
Judgment of: Judge Harman
Hearing date: 13 November 2018
Date of Last Submission: 13 November 2018
Delivered at: Parramatta
Delivered on: 13 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Wong of Counsel
Solicitors for the Applicant: Kenny Spring Solicitors
Solicitors for the Respondent: Mr Hartley of McNamara & Associates

ORDERS

  1. The Arbitration Award of Mr Jeffrey David dated 22 August 2018, is registered as it if…

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Details
AGLC
Pavic & Pavic [2018] FCCA 3386
Case
[2018] FCCA 3386
Decision Date

CaseChat Overview and Summary

In the matter of *Pavic & Pavic*, heard by Judge Harman, the dispute concerned the registration of an arbitration award made on 22 August 2018. The wife had objected to the registration of this award.

The court was required to determine whether the arbitration award should be registered as a decree of the Federal Circuit Court of Australia, notwithstanding the wife's objections. Further, the court needed to consider the appropriate disposition of costs related to the objection and review of the award, as well as the costs of the arbitration itself.

Judge Harman ordered that the arbitration award be registered as if it were a decree of the Federal Circuit Court. All outstanding applications and responses were withdrawn and dismissed. The wife was ordered to pay the husband's costs of and incidental to the objection to registration and/or review of the award, fixed at $5,000, to be paid within 42 days. The court further declared that the costs of the arbitration itself were to be determined by the arbitrator, as they formed a portion of the dispute or a necessary ancillary issue arising from the referral of the entirety of the Part VIII proceedings.

Orders

Orders of the court

1.

The Arbitration Award of Mr Jeffrey David dated 22 August 2018, is registered as it if were a Decree of the Federal Circuit Court of Australia.

2.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

3.

The wife shall pay the husband’s costs of and incidental to the determination of objection to registration of the arbitral award and/or review/setting aside of the arbitral award pursuant to sections 13J and 13K of the Family Law Act 1975, such costs fixed in the sum of $5,000 and to be paid by the wife to the husband within 42 days of today’s date.

4.

Declare that the issue of costs with respect to the conduct of the arbitration leading to and including the delivery of the arbitral award dated 22 August 2018 are costs which must properly be determined by the arbitrator representing a portion of the dispute or a necessary ancillary issue arising from the referral of the totality of the Part VIII proceedings between the parties.

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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