Yang v S & L Consulting & Anor - [2009] NSWSC 223

CITATION: Yang v S & L Consulting & Anor [2009] NSWSC 223

HEARING DATE(S): 20 March 2009

JUDGMENT DATE :
31 March 2009

JURISDICTION: Equity
Commercial List

JUDGMENT OF: White J

DECISION: 1. Judgment for the plaintiff for AUD$530,000 plus interest from 11 January 2008 to the date of judgment at 0.021 percent per day and judgment for RMB 323,932.60 Yuan plus interest from 11 January 2008 to the date of judgment at the same rate; 3. order that the defendants pay the plaintiff’s costs; 4. exhibits may be returned after 28 days.

CATCHWORDS: ARBITRATION - plaintiff sought to enforce Chinese arbitral award against the defendants – defendants contended that to enforce award would be contrary to public policy – enforcement found to not be contrary to public policy

LEGISLATION CITED: International Arbitration Act 1974 (Cth)
Commercial Arbitration Act 1984 (NSW)
Migration Act 1958 (Cth)

CASES CITED: Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538
Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215
Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120
Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391

PARTIES: Xiaodong Yang
v
S & L Consulting Pty Ltd & Anor

FILE NUMBER(S): SC 50162/08

COUNSEL: Plaintiff: J Hogan-Doran
Defendants: D Meltz

SOLICITORS: Plaintiff: Gray & Perkins
Defendants: Marque Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

WHITE J

Tuesday, 31 March 2009

50162/08 Xiaodong Yang v S & L Consulting Pty Ltd & Anor

JUDGMENT

1 HIS HONOUR: This is an application to enforce an arbitral award made in China on 12 December 2007 as corrected on 21 December 2007. The principal issue is whether enforcement of the award would be contrary to public policy.

2 The plaintiff is a Chinese national. In April 2002 he applied for a subclass 127 (business owner) visa to allow himself and his family to reside permanently in Australia. He retained the services of the second defendant, Mr Stephen Lee, a registered migration agent. On 27 May 2003 the plaintiff, Mr Yang, was advised by the Australian Consulate in Hong Kong that his application for a permanent entry visa to Australia for himself, his wife and his son had been approved.

3 On 12 January 2004 an agreement was entered into expressed to be between the plaintiff (described as the investor) and the first defendant, S & L Consulting Pty Ltd, (described as the “Consultancy Company”). The agreement was also signed by Mr Lee as guarantor and he assumed personal obligations under it. Clause 10 provided that any dispute arising out of, or relating to, the agreement should be submitted for arbitration to the China International Economic & Trade Arbitration Commission according to that Commission’s arbitration rules. The clause provided that the arbitral award would be final and binding on both parties. It was pursuant to that submission to arbitration that the arbitral award which the plaintiff now seeks to enforce was made.

4 The…

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: [2009] NSWSC 223
Decision Date: 31 March 2009

CaseChat Overview and Summary

The case of Yang v S & L Consulting & Anor involved a dispute between the plaintiff, Yang, and the defendants, S & L Consulting and another party, regarding the enforcement of a Chinese arbitral award. The plaintiff sought to enforce the award against the defendants in Australia. The defendants opposed enforcement, arguing that it would be contrary to public policy. The court was required to determine whether the enforcement of the arbitral award would contravene public policy in Australia.

The court considered the public policy exception to enforcement of foreign arbitral awards, which prevents the enforcement of awards that are contrary to fundamental principles of justice or that would result in an unconscionable outcome. The court examined the circumstances under which the award was made, the content of the award, and whether there were any grounds for the defendants to challenge the award's validity. The court also assessed whether there were any factors that would make enforcement contrary to Australian public policy.

In reaching its decision, the court found that the arbitral award was valid and that there were no grounds to challenge its validity. The court also determined that the award did not contravene any fundamental principles of justice or result in an unconscionable outcome. The court concluded that enforcement of the award would not be contrary to Australian public policy. The court emphasised the importance of upholding international arbitration agreements and the principle of comity between jurisdictions.

The court ordered that the Chinese arbitral award be enforced in Australia, subject to any applicable procedural requirements. The defendants were directed to comply with the award and to take necessary steps to satisfy the award's terms. The court also noted that the defendants had the right to seek judicial review of the award's enforcement in the appropriate circumstances.

Orders