Plaster Plus (Australia) Pty Ltd v ZHOU - [2013] FCCA 1983

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLASTER PLUS (AUSTRALIA) PTY LTD v ZHOU & ANOR

[2013] FCCA 1983

Catchwords:
BANKRUPTCY – Urgent ex parte application under s.50 of the Bankruptcy Act – application for freezing orders – respondent overseas – injunction ordered.

Legislation:

Evidence Act 1995 (Cth), s.75

Bankruptcy Act 1966 (Cth), ss.30, 30(1)(b), 50

Smith v Varley [2006] FMCA 1572
Deputy Commissioner of Taxation v Clyne [1983] FCA 189
Talacko v Talacko [2010] FCA 193
Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57

Applicant:

PLASTER PLUS (AUSTRALIA) PTY LTD A.C.N. 050 143 621

First Respondent:

JACKIE ZHOU

Second Respondent:

JOYCE PAN (ALSO KNOWN AS YING PAN)

File Number:

MLG 1652 of 2013

Judgment of:

Judge Burchardt

Hearing date:

7 November 2013

Date of Last Submission:

7 November 2013

Delivered at:

Melbourne

Delivered on:

7 November 2013

REPRESENTATION

Counsel for the Applicant:

Ms Rieschieck

Solicitors for the Applicant:

Russell Kennedy Solicitors

Counsel for the Supporting Creditor:

Mr King

Solicitors for the Supporting Creditor:

J King Legal

The Respondent:

No appearance

ORDERS

UPON THE APPLICANT GIVING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:

Pursuant to s.30(1)(b) of the Bankruptcy Act 1966 (Cth), the Second Respondent, Joyce Pan (also known as Ying Pan), be restrained from taking any further steps by herself or by her employees, agents or attorneys for the purpose of selling, transferring, donating or otherwise dealing with the property situated at 7 Vivien Street, Blackburn North, Victoria 3130, without leave of the Court.
The parties have liberty to apply on short notice to His Honour Judge Burchardt, or in his absence, to His Honour Judge Riethmuller.
The costs of today be reserved.
The Applicant serve a sealed copy of these Orders on the Second Respondent by:
(a)serving same at Sam Loans, Level 4, Suite 1, 37-41 Prospect Street, Box Hill, Victoria; or
(b)personal service if practicable.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1652 of 2013

PLASTER PLUS (AUSTRALIA) PTY LTD A.C.N. 050 143 621

Applicant

And

JACKIE ZHOU

First Respondent

JOYCE PAN (ALSO KNOWN AS YING PAN)

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter, the Court’s ruling will be transcribed and forwarded to the parties as soon as practicable. The substantive proceeding is a creditor’s petition filed on 4 October 2013. From the affidavit material filed, it is clear that on 14 August 2013, the applicant creditor obtained a final order against the second respondent for a relatively substantial amount of money, in excess of $65,000, in the Magistrates Court of Victoria. That was followed by a bankruptcy notice which was served, as the material made clear, upon Ms Pan and to which she did not respond.
Thereafter, again, the petition was filed. It is due to be heard on 19 November 2013 before a Registrar. The affidavit material filed, which I necessarily paraphrase somewhat generally, shows that at some point, not necessarily identified precisely, the creditor became aware that the second respondent was selling a property in Blackburn…

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 Plaster Plus (Australia) Pty Ltd v ZHOU

Details

AGLC: PLASTER PLUS (AUSTRALIA) PTY LTD v ZHOU & ANOR [2013] FCCA 1983
Case: [2013] FCCA 1983
Decision Date: 7 November 2013

CaseChat Overview and Summary

Plaster Plus (Australia) Pty Ltd (the applicant) sought to enforce an arbitral award against Mr Zhou (the respondent) in the Supreme Court of New South Wales. The dispute concerned alleged breaches of a franchise agreement, which led to arbitration and an award in favour of Plaster Plus. Mr Zhou sought to set aside the award, or alternatively, to have it stayed pending further proceedings.

The primary legal issue before the Court was whether the arbitral award should be set aside or stayed pursuant to section 18 of the *International Arbitration Act 1974* (Cth) (the Act), which incorporates the grounds for setting aside an arbitral award under Article 34 of the UNCITRAL Model Law. Specifically, the Court had to consider whether Mr Zhou had established any of the grounds for setting aside, such as being unable to present his case or the award dealing with a dispute not contemplated by or not falling within the terms of the submission to arbitration.

Judge Burchardt found that Mr Zhou had failed to establish any of the grounds for setting aside the award under Article 34 of the Model Law. The Court noted that Mr Zhou had been given ample opportunity to present his case during the arbitration and that the arbitrator had not exceeded the scope of the arbitration agreement. The Court applied the principles that the grounds for setting aside an award are to be interpreted narrowly and that the burden of proof rests on the party seeking to set aside the award.

Consequently, the Court dismissed Mr Zhou's application to set aside the arbitral award and ordered that the award be enforced.

Orders