Ultrapetrol SA v Jindal Steel and Power (Mauritius) Limited

[2015] FCA 1091

FEDERAL COURT OF AUSTRALIA

Ultrapetrol SA v Jindal Steel & Power (Mauritius) Limited [2015] FCA 1091

Citation:	Ultrapetrol SA v Jindal Steel & Power (Mauritius) Limited [2015] FCA 1091
Parties:	ULTRAPETROL SA v JINDAL STEEL & POWER (MAURITIUS) LIMITED ACN 139 902 337
File number:	QUD 506 of 2015
Judge:	DOWSETT J
Date of judgment:	29 July 2015
Catchwords:	ARBITRATION – recognition of a foreign arbitral award pursuant to s 8 of the International Arbitration Act 1974 (Cth) – where service not required – where service nonetheless effected – where, by reason of non-appearance, the respondent defaults pursuant to r 5.22 of the Federal Court Rules 2011 (Cth).
Legislation:	Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 28.44 International Arbitration Act 1974 (Cth) s 8
Date of hearing:	29 July 2015
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Solicitor for the Applicant:	Mr P Evans of McKays Solicitors
Counsel for the Respondent:	The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 506 of 2015

BETWEEN:	ULTRAPETROL SA Applicant
AND:	JINDAL STEEL & POWER (MAURITIUS) LIMITED ACN 139 902 337 Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	29 JULY 2015
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1.pursuant to s 8(3) of the International Arbitration Act 1974 (Cth), the applicant is entitled to have the award dated 23 December 2014 made by Messrs Patrick O’Donovan, Clive Aston and Ian Gaunt (the “Award”) recognized by this Court and to enforce the Award in this Court as if the Award were a judgment of this Court.

THE COURT ORDERS THAT:

2.there be judgment in favour of the applicant against the respondent in the amounts of:

(a)USD2,244,879.95 (comprising USD1,919,436 Award principle and USD325,443.95 as pre-judgment interest); and

(b)GBP35,426.04 (comprising GBP34,605 unpaid Award amount in respect of the arbitrator’s costs of the arbitration, and GBP821.04 pre-judgment interest on that amount);

3.the matter be listed for a case management hearing at 10.15am on 7 September 2015; and

4.costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 506 of 2015

BETWEEN:	ULTRAPETROL SA Applicant
AND:	JINDAL STEEL & POWER (MAURITIUS) LIMITED ACN 139 902 337 Respondent

JUDGE:	DOWSETT J
DATE:	29 JULY 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an originating application to enforce a foreign award under the International Arbitration Act 1974 (Cth) (the “Act”). The application has been served on the respondent although, pursuant to r 28.44(3) of the Federal Court Rules 2011 (Cth) (the “Rules”), such an application may be made without notice. I infer that the justification for this rule is the requirement contained in s 8(3) of the Act that any such award be enforced in the Federal Court as if it were a judgment or order of this Court.

2. Thus the relief claimed in paras 1 and 2 of the originating application appears to be merely a mechanism designed to lead to the enforcement of the award. Such enforcement can only be resisted by the respondent in accordance with s 8(5) of the Act. The applicant does not presently seek enforcement, only that entitlement to such enforcement be established.

3. Notwithstanding the fact that the rule did not require service, the applicant has served the respondent. It has not appeared. Such non‑appearance is, in my view, default pursuant to r 5.22 of the Rules, and therefore a basis for an order by default pursuant to r 5.23. In the present case any order made on the basis of such default would be made pursuant to subr (2) subparas (b) or (d). Thus it seems that either on the basis of that rule, or on the basis that in any event service was not required, I should make the orders sought in paras 1 and 2 of the application.

4. I therefore declare that pursuant to s 8(3) of the Act the applicant is entitled to have the award dated 23 December 2014 made by Messrs Patrick O’Donovan, Clive Aston and Ian Gaunt (the “Award”) recognized by this Court and to enforce the Award in this Court as if the Award were a judgment of this Court.

5. I give judgment in favour of the applicant against the respondent in the amounts of:

   (a)USD2,244,879.95 (comprising USD1,919,436 Award principle and USD325,443.95 as pre-judgment interest), and;

   (b)GBP35,426.04 (comprising GBP34,605 unpaid Award amount in respect of the arbitrator’s costs of the arbitration, and GBP821.04 pre-judgment interest on that amount).

6. I adjourn the balance of the originating application for further consideration by way of a case management hearing on 7 September 2015. 

7. I reserve costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        12 October 2015