Transpac Capital Pte Limited v Buntoro - [2008] NSWSC 671

CITATION: TRANSPAC CAPITAL PTE LIMITED v BUNTORO [2008] NSWSC 671

HEARING DATE(S): Tuesday 10 June 2008

JUDGMENT DATE :
7 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (1) That leave be granted to enforce the Award, that being the Final Award of the Singapore International Arbitration Centre number ARB 057 of 2005, dated 20 August 2007, in this Court as if the Award had been made in this State in accordance with the laws of this State and in the same manner as a judgment of this Court with respect to the amounts set out in paragraph (2) below.
(2) That there be an order for judgment for the plaintiff in accordance with the terms of the Award, as follows:
(a) US$5,000,000 – being $6,282,196.26 Australian dollars (as at the date of the Award).
(b) US$531,014.45 – being $667,187.40 Australian dollars (as at the date of the Award).
(c) US$1,371,784.13 – being $1,723,563.43 Australian dollars (as at the date of the Award).
(d) S$109,461.57 – being $90,143.76 Australian dollars (as at the date of the Award).
(3) The total of the amounts in (2)(a) to (d) above is $8,763,090.85 and an order for judgment in that total sum is, accordingly, to be entered for the plaintiff.
I order the defendant to pay the costs of this application as agreed or assessed.

CATCHWORDS: PRACTICE AND PROCEDURE – INTERNATIONAL ARBITRATION – enforcement of foreign award under International Arbitration Act 1974 (Cth) – whether contractual agreements are arbitration agreements for the purpose of the Act – whether the Singaporean award is a foreign award for the purpose of the Act – formalities imposed by the Act for recognition of foreign awards

LEGISLATION CITED: International Arbitration Act 1974 (Cth)

PARTIES: TRANSPAC CAPITAL PTE LIMITED
v ANTHONY BUNTORO

FILE NUMBER(S): SC No 11373 of 2008

COUNSEL: P: A Abadee
D: No appearance

SOLICITORS: P: Slater & Gordon
D: No appearance

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

MONDAY 7 JULY 2008

No 2008/11373

TRANSPAC CAPITAL PTE LTD v ANTHONY BUNTORO
JUDGMENT

1 HIS HONOUR: These proceedings concern an application by the plaintiff for leave to enforce a foreign award pursuant to s.8 of the International Arbitration Act 1974 (Cth).

2 The plaintiff is a Singaporean company, Registration No. 198904927H. The foreign award in question is that of the Singapore International Arbitration Centre, dated 29 August 2007 (hereafter, “the Award”).

3 The plaintiff brought proceedings against the defendant who was one of three respondents named in the overseas arbitration proceedings that led to the making of the award. The award was made against him and the other two respondents to those proceedings. In an affidavit sworn 26 March 2008, Mr Lewis, solicitor for the plaintiff, states that he believes, having been informed by the plaintiff, that the defendant is domiciled in or is ordinarily a resident of New South Wales (Affidavit of Steven Lewis sworn 26 March 2008 at [15]).

4 At the hearing of…

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: [2008] NSWSC 671
Decision Date: 7 July 2008

CaseChat Overview and Summary

The case of Transpac Capital Pte Limited v Buntoro involved a dispute concerning the enforcement of a foreign arbitration award. Transpac Capital, a Singapore-based company, sought to enforce an arbitration award made by the Singapore International Arbitration Centre against Buntoro, an Indonesian national, under the provisions of the International Arbitration Act 1974. The primary legal issues revolved around whether the agreements between the parties constituted valid arbitration agreements for the purposes of the Act, and whether the award made in Singapore qualified as a "foreign award" under the Act. Additionally, the court had to consider whether the formalities required by the Act for recognition of foreign awards had been met.

The Federal Court addressed the first issue by examining the language and substance of the contractual agreements between the parties. It was determined that the agreements did indeed constitute valid arbitration agreements, as they clearly set out the parties' intention to resolve disputes through arbitration. Regarding the second issue, the court found that the Singaporean award was indeed a foreign award under the Act, as it was made by an arbitral tribunal seated in Singapore and was not an Australian domestic award. The court further considered the formalities required by the Act and concluded that the necessary requirements had been met, including the production of the original award or a certified copy and evidence of the parties' consent to arbitration.

In summary, the Federal Court found in favour of Transpac Capital and upheld the enforcement of the Singaporean arbitration award in Australia. The court's decision confirmed that the contractual agreements were valid arbitration agreements under the Act, and that the Singaporean award qualified as a foreign award. Furthermore, the formalities required for recognition of foreign awards were deemed to have been satisfied. As a result, Transpac Capital was granted permission to enforce the award in Australia, subject to any relevant defences that Buntoro might raise.

Orders