Hi-Gene Limited v Swisher Hygiene

IN THE SUPREME COURT OF NEW ZEALAND
SC 87/2010
[2010] NZSC 132

BETWEENHI-GENE LIMITED

Applicant

ANDSWISHER HYGIENE FRANCHISE CORPORATION

Respondent

Court:Blanchard, McGrath and Young JJ
Counsel:W G C Templeton and A R Gilchrist for Applicant

A C H Clemow for Respondent

Judgment:3 November 2010

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $2,500 to the respondent.

REASONS
[1]        The proposed appeal concerns whether an arbitral award made in North Carolina, USA should be enforced in New Zealand. It is said that in circumstances where the arbitrators refused the applicant an adjournment shortly before the hearing and then proceeded to hear and determine the matters in dispute in the absence of the applicant, there was a breach of natural justice which required that the award should not be recognised or enforced in this country.
[2]        Both the High Court[1] and the Court of Appeal[2] disagreed. A proposed appeal therefore would challenge their concurrent conclusions on what, in the end, is a matter of evaluation of the circumstances of the award.
[1]Swisher Hygiene Franchise Corporation v Hi-Gene Ltd HC Auckland CIV-2009-404-1573, 2 December 2009 per Duffy J.
[2]Hi-Gene Ltd v Swisher Hygiene Franchise Corporation [2010] NZCA 359 per Randerson, Potter and Venning JJ.
[3]        Whilst it is possible to be critical of the decision not to grant the adjournment, a consideration of the preceding events and the grounds on which and the manner in which the adjournment was sought leads us to the view that the proposed appeal has no prospect of success. What the arbitrators did was not in context so egregious that is justifies refusal to enforce the award. The Courts below have fairly appraised the situation. No question of general principle arises and there is no appearance of a miscarriage of justice.
Solicitors:
Foley & Hughes, Auckland for Applicant
Gaze Burt, Auckland for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to determine whether an arbitral award made in North Carolina, USA, should be enforced in New Zealand. The applicant, Hi-Gene Limited, claimed that the award should not be recognised or enforced because the arbitrators had breached natural justice by refusing the applicant an adjournment shortly before the hearing and then proceeding to hear and determine the matters in dispute in the absence of the applicant. The Court of Appeal had previously dismissed the applicant’s appeal, and now the Supreme Court was asked to consider whether to grant leave to appeal to the Court of Appeal’s decision. The legal issues before the court were whether the refusal of the adjournment was so egregious that it justified refusal to enforce the award, and whether there was an appearance of a miscarriage of justice. The court found that, while it was possible to be critical of the decision not to grant the adjournment, a consideration of the preceding events and the grounds on which and the manner in which the adjournment was sought led to the view that the proposed appeal had no prospect of success. The court concluded that the arbitrators’ actions were not in context so egregious that it justified refusal to enforce the award, and that the Courts below had fairly appraised the situation. The court found that no question of general principle arose and that there was no appearance of a miscarriage of justice.

The Supreme Court dismissed the application for leave to appeal with costs of $2,500 to the respondent. The court found that the refusal of the adjournment was not so egregious that it justified refusal to enforce the award, and that the Courts below had fairly appraised the situation. The court found that no question of general principle arose and that there was no appearance of a miscarriage of justice. The court’s decision was based on a consideration of the circumstances of the award and the preceding events, and the court found that the proposed appeal had no prospect of success. The court ordered that the costs of $2,500 be paid by the applicant to the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established