Reeves v Alt Advisory (Jersey) Limited and Alt Financial Group Limited
[2023] VSC 249
•10 May 2023 (publication of reasons 12 May 2023)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
ARBITRATION LIST
S ECI 2023 00231
| Professor Ian William Reeves CBE | Applicant |
| v | |
| ALT Advisory (Jersey) Limited | First Respondent |
| and | |
| ALT Financial Group Limited (ACN 609 449 194) | Second Respondent |
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JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 May 2023 |
DATE OF JUDGMENT: | 10 May 2023 (publication of reasons 12 May 2023) |
CASE MAY BE CITED AS: | Reeves v ALT Advisory (Jersey) Limited and ALT Financial Group Limited |
MEDIUM NEUTRAL CITATION: | [2023] VSC 249 |
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ARBITRATION — Recognition and enforcement of foreign arbitral award — International Arbitration Act 1974 ss 8(2), 9(1) and 9(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Mason | Pinsent Masons Solicitors |
| For the First Respondent | No appearance | |
| For the Second Respondent | No appearance |
HIS HONOUR:
Introduction
By Originating Application to Enforce Foreign Award dated 24 January 2023 Professor Ian William Reeves CBE (“the Applicant”) being a party to an arbitration agreement, applied for an order under s 8(2) of the International Arbitration Act 1974 (Cth) (“the Act”) to enforce a foreign award against ALT Advisory (Jersey) Limited (“First Respondent”) and ALT Financial Group Limited (ACN 609 449 194) (“Second Respondent”).
The foreign arbitral award the subject of this application is one in which the ICC International Court of Arbitration made in favour of the Applicant on 8 September 2022 (ICC Case 25511/HTG), with Mr Desmond Ang as sole arbitrator (“Final Award”).[1]
[1]Professor Ian William Reeves CBE v Alt Advisory (Jersey) Limited and Alt Financial Group Limited (Final Award) (ICC, Case No 25511/HTG, 8 September 2022) (“Final Award”).
The arbitration agreement giving the subject of the Final Award is contained in the employment agreement which the Applicant executed on 11 May 2018 (“Employment Agreement”) with the First Respondent, which is a company registered in Jersey in the Channel Islands and the Second Respondent, a company registered in Australia.[2]
[2]Employment Agreement, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 26.
In conformity with the requirements of s 9(1) of the Act a duly certified copy of the Final Award was provided as was a copy of the arbitration agreement under which the award purports to have been made authenticated to the satisfaction of the Court pursuant to the provisions under s 9(2) of the Act.[3] The document in which the arbitration agreement is contained is the Employment Agreement[4] which was authenticated as indicated in the immediately preceding paragraph.
[3]The Final Award was certified by Alexander G Fessas, the Secretary General of the ICC International Court of Arbitration; certified in Paris on 22 November 2022 together with a copy of the Employment Agreement under which the award purports to have been made.
[4]See at clause 10(b).
Final Award and Employment Agreement
In the Final Award, the Applicant was awarded the following amounts against both the First Respondent and the Second Respondent:
(a) damages of USD606,666.76 on account of the Applicant’s remuneration and housing costs from January 2019 to April 2021;
(b) USD73,333.34 for sums owing to the Applicant pursuant to Appendix 2 of the Employment Agreement for unpaid remuneration, housing costs and relocation costs, and as damages;
(c) pre-award interest and post-award interest; and
(d) his costs of the arbitration, fixed in the amount of GBP51,707.61 on account of his legal costs, and USD91,019.25 on account of the arbitral tribunal's fees and expenses.
The Applicant was also awarded as against the Second Respondent, an additional amount on account of the costs incurred in connection with the Second Respondent’s objection to the jurisdiction of the arbitral tribunal; being GBP22,856.76 on account of his legal costs and USD18,980.75 on account of the arbitral tribunal's fees and expenses.[5]
[5]Final Award (n 1) 68.
The background to the Final Award contended as being relevant to this application is, as submitted, now summarised as follows.
The Applicant entered into the Employment Agreement with the First Respondent and the Second Respondent on 11 May 2018. Pursuant to that agreement, he acted as a director of, and as the Executive Chairman of, the Board of Directors of each Respondent.[6] The Second Respondent provided a guarantee of the First Respondent's obligations under the Employment Agreement.[7]
[6]Employment Agreement app I sch 1, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 41.
[7]Employment Agreement sch 1 cl 6, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 39-40.
The Employment Agreement provided for, amongst other things, the Applicant’s remuneration and other entitlements: see clause 3 and Appendix 2, Schedule 1 to the Employment Agreement.[8]
[8]Employment Agreement cl 3, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 27; Employment Agreement app 2 sch 1, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 42-3.
The Employment Agreement also contained at clause 10(b) the parties' arbitration agreement which specified that the dispute was to be resolved under the Rules of Conciliation and Arbitration of the International Chamber of Commerce.[9] The law applicable to the arbitration agreement was the law of England.[10]
[9]Employment Agreement cl 10(b), Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 33.
[10]Employment Agreement app II, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 37.
On 27 December 2018, the Applicant resigned his employment under the Employment Agreement.[11] At that time, all his accrued entitlements under the Employment Agreement were outstanding.
[11]Affidavit and Exhibit Bundle IWR-01 of Professor Ian William Reeves CBE, 3 [9].
On 13 May 2020, the Applicant issued a notice of dispute pursuant to clause 10(a) of the Employment Agreement regarding his outstanding entitlements.[12] The dispute was not resolved within the 30 days the Employment Agreement provided.[13]
[12]Letter from Spencer Shaw Solicitors Limited to Alt Advisory (Jersey) Ltd, 13 May 2020, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 148; letter from Spencer Shaw Solicitors Limited to Alt Financial Ltd, 13 May 2020, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 150.
[13]Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 3 [12].
The Applicant then filed a Request for Arbitration on 22 July 2020.[14]
[14]Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 3 [13].
The Second Respondent challenged the arbitral tribunal's jurisdiction on the basis that the Second Respondent had signed the Employment Agreement ‘by a single director which under Australian law would, in all probability, make it unenforceable’ as against the Second Respondent.[15]
[15]Letter from Christopher Nicholls of Alt Financial Group Ltd to Spencer Shaw Solicitors Limited, 20 August 2020, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones 182, 183.
The arbitral tribunal then proceeded to determine its jurisdiction as a preliminary issue. In a partial award delivered on 6 August 2021, the arbitral tribunal determined that the Second Respondent was bound by the Employment Agreement and the arbitration agreement it contained, and, accordingly, that the arbitral tribunal had jurisdiction over the Second Respondent to hear and determine the Applicant’s claims.[16]
[16]Professor Ian William Reeves CBE v Alt Advisory (Jersey) Limited and Alt Financial Group Limited (Partial Award) (ICC, Case No 25511/HTG, 3 August 2021), attached to email from H Tang to Applicant, First Respondent and Second Respondent, 6 August 2021, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 339-97.
The tribunal then progressed to determining the merits of the Applicant’s claims.
The Applicant filed an amended memorial, an amended statement of loss, a supplementary witness statement, and a reply to various questions the arbitral tribunal had previously raised for the parties' consideration.[17] He informed the tribunal that he did not intend to apply for an oral hearing.[18]
[17]Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 18 [73].
[18]Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 19 [77].
The Respondents did not file any response to the Applicant’s amended memorial, or to the arbitral tribunal's questions.[19] Nor did the Respondents respond to the tribunal's request that they confirm whether they would seek an oral hearing.[20]
[19]Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 19 [78].
[20]Ibid.
The arbitral tribunal delivered the Final Award on 8 September 2022.[21]
[21]Email from H Tang to Applicant, First Respondent and Second Respondent, 9 September 2022, Affidavit and Exhibit Bundle ISJ-01 of Ian Spencer Jones, 564.
Position post-delivery of Final Award
Neither the First Respondent nor the Second Respondent has paid the Applicant any part of the amount awarded in his favour.[22]
[22]Affidavit and Exhibit Bundle IWR-01 of Professor Ian William Reeves CBE, 3 [14].
The affidavits relied upon also demonstrate that the First Respondent and the Second Respondent have been properly served with the Applicant’s application, together with the documents required to be served in accordance with s 9(1) of the Act, and an affidavit setting out the extent to which the Award has not been complied with and the First Respondent’s and the Second Respondent’s usual or last-known places of business.[23] The Applicant is not aware of any other address used to effect substituted service.[24]
[23]Affidavit and Exhibit Bundle IWR-01 of Professor Ian William Reeves CBE, 2-5; Affidavit and Exhibit Bundle PB-01 of Phillipa Beck affirmed 24 January 2023, 2-5; Affidavit and Exhibit Bundle PB-02 of Phillipa Beck affirmed 28 March 2023, 2-3; Affidavit and Exhibit Bundle PB-03 of Phillipa Beck affirmed 9 May 2023, 2-4.
[24]Affidavit and Exhibit Bundle PB-02 of Phillipa Beck affirmed 28 March 2023, 4 [10].
Summary and conclusions
In the absence of any appearance from the First Respondent or the Second Respondent, there is no basis for the Court to consider any of the matters set out in s 8(5) of the Act having regard to which the Court may refuse to enforce an award. It is clear from these provisions that these matters are to be raised “at the request of the party” against whom the award is otherwise to be enforced and that party so raising either of these matters bears the burden of establishing any matter or matters relied upon.
Additionally, there is nothing in the material before the Court to suggest that it should refuse to enforce the Final Award on the basis of any finding under s 8(7) of the Act, either because the subject matter of the award is not capable of settlement under applicable law, or that would be contrary to public policy to enforce the Final Award.
For the preceding reasons, the Award should be enforced pursuant to s 8(2) of the Act.
For the purpose of recognising and enforcing the Award under the provisions of s 8 of the Act, orders have been made in the form of the orders as sought by the Applicant in the Originating Application to Enforce Foreign Award dated 24 January 2023.
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