Wajnsztajn v Rabbi Feldman
[2016] NSWSC 185
•03 March 2016
Supreme Court
New South Wales
Medium Neutral Citation: Wajnsztajn v Rabbi Feldman [2016] NSWSC 185 Hearing dates: 03/03/2016 Date of orders: 03 March 2016 Decision date: 03 March 2016 Jurisdiction: Equity - Commercial Arbitration List Before: McDougall J Decision: Orders in accordance with the summons
Catchwords: ARBITRATION – application under s 35 of Commercial Arbitration Act 2010 (NSW) – order for enforcement of award by arbitrator – no appearance by defendant – order made – no question of principle Legislation Cited: Commercial Arbitration Act 2010 (NSW) Category: Principal judgment Parties: Joseph Wajnsztajn (Plaintiff)
Eastside Building and Construction Pty Limited (Second Plaintiff)
Rabbi Shmueli Feldman (Defendant)Representation: Counsel:
Solicitors:
W MacCallum (Solicitor) (Plaintiffs)
No appearance (Defendant)
Aitken Lawyers Pty Ltd (Plaintiff)
File Number(s): 2016/29575
Judgment (ex tempore – revised 3 march 2016)
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HIS HONOUR: The plaintiffs seek an order under s 35 of the Commercial Arbitration Act 2010 (NSW): an order for recognition and enforcement, as a judgment of this Court, of the award made by Mr David Baran as arbitrator.
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The defendant has not appeared either today or on previous days when the matter was before the Court. On 26 February 2016, on the return of the summons, the plaintiffs' legal representative appeared and asked for an adjournment to enable negotiations to proceed. The List Judge declined to do that. He stood the matter over until 29 February 2016. His Honour then fixed the matter for hearing today.
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I mention those matters because the defendant has not appeared. He contacted my chambers yesterday, quite inappropriately, without the prior knowledge or consent of the plaintiffs. He put forth a story concerning his inability, by reason of alleged family problems, to appear or indeed to instruct legal representatives. When it was indicated to him that his contact was inappropriate and that the discussion should not continue, he sent an email to my Associate which I have marked for identification 1. That email again was sent without the prior knowledge or consent of the plaintiffs. However, it was copied to the plaintiffs' lawyers.
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The burden of the defendant's complaint is that he wants to resolve the matter, and wants time to do that. In any event, he says, for the reasons that he has indicated, he is not in a position to appear or to proceed today.
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The plaintiffs wish to proceed. They are entitled to do so. The philosophy underlying the Commercial Arbitration Act, and the role of the Court in facilitating enforcement of arbitral awards, is quite clear. It may be noted that the defendant has had some years in which to attempt to resolve his disputes with the plaintiffs. Further, given that the second of the two awards (the one actually quantifying the amounts due) was made as long ago as 24 June 2015, the defendant has had ample time since then to pursue settlement negotiations.
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The plaintiffs' evidence proves the existence of an arbitration agreement between the plaintiffs and the defendant. It proves that, ultimately, Mr Baran was appointed as the sole arbitrator. It proves the awards made by Mr Baran. In the first award, dated 4 February 2015, Mr Baran set out in lengthy and detailed reasons his conclusions on each of the disputes. In substance, he found for the plaintiffs with the exception of two claims that he identified.
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Mr Baran directed the parties to agree on the orders to be made if that were possible. Whether they did or not, in his second award made on 24 June 2015, Mr Baran quantified the monetary effect of the outcome that he had stated in his earlier award.
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The defendant has made no application under s 34 of the Commercial Arbitration Act for the setting aside of the award. In those circumstances, subject to s 36 of the Act, the plaintiffs are, at least prima facie, entitled to the relief that they seek.
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Section 36 sets out the sole grounds on which the Court may decline to recognise or enforce an arbitral award. There is no evidence that any of those grounds are enlivened. In the circumstances, the prima facie view to which I have referred, namely that the plaintiffs should succeed, is the ultimate outcome that must prevail.
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For those reasons I make orders in accordance with paragraphs 1, 2 and 3 of the summons filed on 29 January 2016.
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Decision last updated: 04 March 2016
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