Thaler v Amzalak (No 2) - [2013] NSWSC 632

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Thaler v Amzalak (No 2) [2013] NSWSC 632
Hearing dates: 26 February 2013, 27 February 2013, 28 February 2013, 1 March 2013, 8 April 2013, 9 April 2013, 10 April 2013, 6 May 2013, 7 May 2013, 8 May 2013
Decision date: 27 May 2013
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. Mr Thaler's summons is dismissed
2. The Beth Din's award is set aside.

Catchwords:
ARBITRATION - award - enforcement of an arbitral award - arbitral award made by Beth Din in Zablo - summons seeking leave to enforce award - cross-summons seeking to set aside the award - failure to give reasons - credibility and reliability of witnesses - Beth Din of Zablo - whether Beth Din decision complied with the requirements of s 29(1)(c) - allegation of fraud - allegation of misconduct - whether plaintiff established that he was a party to Beth Din proceedings - problems with record keeping at Beth Din proceedings - notice and opportunity to be heard - Beth Din not conducted in accordance with written arbitration agreement - requirement of impartiality not met - bias established - use of Yiddish - proper attention not paid to defendant's case - orders sought under s 43 of Commercial Arbitration Act 1984 cannot be made - orders - costs

EVIDENCE - leave sought by Mr Thaler to give evidence in reply - leave refused - ruling under s 136 of the Evidence Act in relation to Mr Koncepolski's evidence sought - ruling refused

PROCEDURE - notice of motion - order seeking to set aside subpoena - motion dismissed
PROCEDURE - pleadings - leave to amend further amended cross-summons - leave granted
Legislation Cited: Civil Procedure Act 2005
Commercial Arbitration Act 1984 (repealed)
Commercial Arbitration Act 2010
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522; 286 ALR 501
D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2010] WASC 130
Doran Constructions Pty Ltd v Health Administration Corporation of New South Wales (unreported 10 October 1994 New South Wales Court of Appeal)
Gas & Fuel Corporation of Victoria v Wood Hall Ltd [1978] VR 385
Gordian Runoff Ltd v Westport Insurance Corporation [2010] NSWCA 57; (2010) 267 ALR 74
Leveraged Equities Pty Ltd v Huxley [2010] NSWCA 179
Mond v Berger [2004] VSC 45; (2004) VR 534
Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140
Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255; (2007) 18 VR 346
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Watson v Foxman (1995) 49 NSWLR 315
Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239
Category: Principal judgment
Parties: Shlomo Thaler (Plaintiff)
Benjamin Amzalak (also known as Binyomin Zeev Amzalak) (Defendant)
Representation: Counsel:
Mr M S White with…

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.

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Details

Case: [2013] NSWSC 632
Decision Date: 27 May 2013

CaseChat Overview and Summary

The case of Thaler v Amzalak (No 2) was heard in the Supreme Court of Victoria, where the parties were engaged in a dispute over the enforcement of an arbitral award made by the Beth Din of Zablo. Mr Thaler sought leave to enforce the award, while Mr Amzalak cross-applied to set it aside. The legal issues revolved around whether the Beth Din decision complied with the requirements of section 29(1)(c) of the relevant legislation, including the failure to give reasons, the credibility and reliability of witnesses, and the establishment of fraud and misconduct. Additionally, the court had to determine if the Beth Din proceedings were conducted impartially and in accordance with the written arbitration agreement.

The court found that the Beth Din decision did not comply with the statutory requirements, primarily due to the failure to give reasons, which rendered the award unreliable. The court held that the Beth Din was not conducted impartially, as there was evidence of bias, and the requirement of impartiality was not met. The Beth Din's use of Yiddish, without proper translation, and failure to give adequate attention to the defendant's case further contributed to the conclusion that the award could not be enforced. Consequently, the court refused to make orders under section 43 of the Commercial Arbitration Act 1984 and dismissed the summons to enforce the award. The court also granted costs against the plaintiff.

In addition to the substantive issues, the court dealt with procedural matters, such as leave to amend pleadings and the enforcement of subpoenas. The court granted leave to amend the further amended cross-summons and dismissed a motion to set aside a subpoena. Furthermore, the court refused to grant leave for Mr Thaler to give evidence in reply and to seek a ruling under section 136 of the Evidence Act in relation to Mr Koncepolski's evidence.

Orders