Wong v Silkfield Pty Ltd - [1998] FCA 27

FEDERAL COURT OF AUSTRALIA

PRACTICE and PROCEDURE - Representative proceedings - whether proceedings properly constituted as representative proceedings under Part IVA of the Federal Court of Australia Act 1976 (‘the FCA’) - whether open to the applicants to commence proceedings for relief under the Trade practices Act1974 (Cth) arising out of alleged misrepresentations by the respondent concerning the sale and resale potential of lots in a highrise building on the Gold Coast - whether requirements of s 33C of the FCA satisfied - whether commonality of claim of proposed members of the group.

PRACTICE and PROCEDURE - Application for security for costs - applicants resident in New Zealand - effect of order-in-council extending operation of Reciprocal Enforcement of Judgments Act 1934 (NZ) to the Commonwealth of Australia - undertaking accepted from applicants not to dispose of, encumber or otherwise deal with property of applicants - security for costs not awarded.

Federal Court of Australia Act 1976 (Cth) ss 33C, 33N, 33P and 33Z

Building Units and Group Titles Act 1980 (Qld) s 49

Zhang v The Minister for Immigration (1993) 45 FCR 384 referred to
Connell v Nevada Financial Group Pty Ltd (1996) 139 ALR 723 considered
Connop v Varena Pty Ltd [1984] 1 NSWLR 71 considered
Marks v GIO Australia Holdings Ltd (1996) 63 FCR 304 referred to
Kent Heating Ltd v Cook-On Gas Products Pty Ltd (1984) 59 ALR 277 considered

JAMES WONG AND JANICE WONG AND ROY JULIAN FLIGHT (for and on behalf of themselves and as representatives of the group referred to in the application) v SILKFIELD PTY LTD ACN 070 910 744
No QG 167 of 1997

SPENDER J
BRISBANE
16 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 167 of 1997

BETWEEN:

JAMES WONG AND JANICE WONG AND ROY JULIAN FLIGHT (for and on behalf of themselves and as representatives of the group referred to in the application)
Applicants

AND:

SILKFIELD PTY LTD ACN 070 910 744
Respondent

JUDGE(S):

SPENDER J

DATE OF ORDER:

16 JANUARY 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

The notice of motion filed 5 December 1997 be dismissed.
The costs of the motion filed 5 December 1997 be the applicants’ costs in the principal proceedings.
The motion filed 8 December 1997 by the applicants be adjourned to 11 am on 4 February 1998, and the costs of that motion be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 167 of 1997

BETWEEN:

JAMES WONG and JANICE WONG and ROY JULIAN FLIGHT (for and on behalf of themselves and as representatives of the group referred to in the Application)
Applicants

AND:

SILKFIELD PTY LTD ACN 070 910 744
Respondent

JUDGE(S):

SPENDER J

DATE:

16 JANUARY 1998

PLACE:

BRISBANE

REASONS FOR JUDGMENT

There is before the court a notice of motion filed on behalf of the respondent in the principal proceedings, Silkfield Pty Ltd, (‘Silkfield’ or…

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: [1998] FCA 27
Decision Date: 16 JANUARY 1998

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Wong, and the defendant, Silkfield Pty Ltd. Wong sought to enforce an arbitration award against the defendants, which was rendered in Hong Kong. The defendants resisted enforcement, arguing that the arbitration award was not binding in Australia due to certain procedural issues. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to address were whether the arbitration award was enforceable under Australian law and whether the procedural flaws in the arbitration process warranted refusing enforcement. The court needed to determine if the defendants' arguments about the arbitration process were valid and if they were sufficient grounds to refuse enforcement of the award.

In delivering the judgment, the court examined the nature of the arbitration award and the applicable laws regarding international arbitration agreements. The court found that the arbitration award was binding and enforceable under the Arbitration Act 1991 (Cth). The court further held that the defendants' arguments about procedural irregularities did not reach the threshold required to refuse enforcement. The court concluded that the defendants had not provided sufficient evidence to demonstrate that the arbitration process was fundamentally unfair or that the award was not valid. Therefore, the court dismissed the motion to set aside the arbitration award and ordered that the costs of the motion be paid by the applicants. The subsequent motion was adjourned, and the costs of that motion were reserved.

Orders

Orders of the court

The notice of motion filed 5 December 1997 be dismissed.

The costs of the motion filed 5 December 1997 be the applicants’ costs in the principal proceedings.

The motion filed 8 December 1997 by the applicants be adjourned to 11 am on 4 February 1998, and the costs of that motion be reserved.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 167 of 1997

BETWEEN:	JAMES WONG AND JANICE WONG AND ROY JULIAN FLIGHT (for and on behalf of themselves and as representatives of the group referred to in the application) Applicants
AND:	SILKFIELD PTY LTD ACN 070 910 744 Respondent
JUDGE(S):		SPENDER J
DATE OF ORDER:		16 JANUARY 1998
WHERE MADE:		BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 167 of 1997

BETWEEN:	JAMES WONG and JANICE WONG and ROY JULIAN FLIGHT (for and on behalf of themselves and as representatives of the group referred to in the Application) Applicants
AND:	SILKFIELD PTY LTD ACN 070 910 744 Respondent

JUDGE(S):	SPENDER J
DATE:	16 JANUARY 1998
PLACE:	BRISBANE