Sharma v Military Ceramics Corporation

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: STEWART J
• Judgment Date: 20 February 2020
• Neutral Citation: [2020] FCA 216
• Date: 20 February 2020

FEDERAL COURT OF AUSTRALIA

Sharma v Military Ceramics Corporation [2020] FCA 216

File number:	NSD 2003 of 2019
Judge:	STEWART J
Date of judgment:	20 February 2020
Date of publication of reasons:	26 February 2020
Catchwords:	PRACTICE AND PROCEDURE – application to adjourn interlocutory application made informally immediately prior to hearing – delay – prejudice to parties, other litigants and administration of justice if application granted ARBITRATION – international commercial arbitration – application to set aside arbitral award under Art 34 of the UNCITRAL Model Law on International Commercial Arbitration – interlocutory application to summarily dismiss set aside application as being out of time – whether application to set aside filed within three months of arbitral award being received by the applicant as required by Art 34(3) of the Model Law – when arbitral award was received
Legislation:	Evidence Act 1995 (Cth) s 161 Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 37N Federal Court Rules 2011 (Cth) rr 4.05, 17.01, 17.04, 26.01 International Arbitration Act 1974 (Cth) s 16 UNCITRAL Model Law on International Commercial Arbitration Arts 1, 34
Cases cited:	ABC Co v XYZ Co Ltd [2003] SLR 546 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 BXS v BXT [2019] SGHC(I) 10 Downer-Hill Joint Venture v Government of Fiji [2005] 1 NZLR 554 Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414; 314 ALR 299 Hebei Jikai Industrial Group Co Ltd v Martin [2015] FCA 228; 324 ALR 268 Kyburn Investments Ltd v Beca Corporate Holdings Ltd [2015] NZCA 290; 3 NZLR 644 Moohan v S. & R. Motors [Donegal] Ltd [2009] IEHC 391 Opotiki Packing & Coolstorage Ltd v Opotiki Fruitgrowers Co-operative Ltd (In Receivership) [2003] 1 NZLR 205 PT Pukuafu Indah v Newmont Indonesia Ltd [2012] 4 SLR 1157 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 Todd Petroleum Mining Co Ltd v Shell (Petroleum Mining) Co Ltd [2014] NZCA 507
Date of hearing:	20 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	International Commercial Arbitration
Category:	Catchwords
Number of paragraphs:	77
Counsel for the Applicant:	V Sharma, with leave
Solicitor for the First Respondent:	G Willis

ORDERS

		NSD 2003 of 2019
BETWEEN:	SANJAY SHARMA Applicant
AND:	MILITARY CERAMICS CORPORATION First Respondent ; VIPUL ARORA Second Respondent ; RAM LALL KHETAN Third Respondent ; NITISH KHETAN Fourth Respondent

JUDGE:	STEWART J
DATE OF ORDER:	20 february 2020

THE COURT ORDERS THAT:

1. The applicant’s application for an adjournment of the hearing today (both the case management hearing and the hearing of the first respondent’s interlocutory application filed on 9 January 2020) made by email to the Associate of Stewart J and received at 5:45am AEDT on 20 February 2020 is dismissed.

2. In consequence of Art 34(3) of the UNCITRAL Model Law on International Commercial Arbitration being Sch 2 to the International Arbitration Act 1974 (Cth) the Originating Application filed on 29 November 2019 be summarily dismissed.

3. The applicant pay the first respondent’s costs of the proceeding.

4. The first respondent have leave to make an application for a lump sum costs order to a Registrar of this Court.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. Before me on 20 February 2020 was the first respondent’s interlocutory application to summarily dismiss the applicant’s originating application. There was also an application on behalf of the applicant to adjourn the hearing of the first respondent’s interlocutory application to a date at the end of April or in May 2020.

2. I dismissed the adjournment application and granted the first respondent the relief sought in its interlocutory application by summarily dismissing the originating application. That was in the application of Art 34(3) of the UNCITRAL Model Law on International Commercial Arbitration (being Schedule 2 to the International Arbitration Act 1974 (Cth) (IAA)) which requires an application to set aside an arbitration award – which is what the applicant’s originating application sought – to be made within three months of the applicant receiving the award.

3. These are my reasons for making those orders.

Background

4. The first respondent, Military Ceramics Corporation (MCC), is a company incorporated in the British Virgin Islands.

5. The applicant and each of the second, third and fourth respondents are citizens of India and are resident in India. I shall refer to them as the Indian parties. From what is stated in the arbitration award to which further reference is made below, the Indian parties appear to be business people.

6. In March 2012, MCC and the Indian parties concluded a joint venture agreement. It provided for disputes to be resolved by arbitration with the seat of the arbitration being Sydney, Australia, and for the arbitration to be conducted in accordance with the rules of the Australian Centre for International Commercial Arbitration (ACICA). The law governing the March 2012 agreement was expressed to be the law of Hong Kong.

7. In September 2014, MCC commenced arbitration proceedings against the Indian parties in relation to a dispute said to arise under the March agreement. In December 2014, ACICA appointed Ms Kim H Rooney, a Hong Kong barrister, as sole arbitrator.

8. In the arbitration proceeding the applicant nominated a particular email address as being his address for the purposes of notice in that proceeding. Without identifying the address, I shall refer to it as the Sanya Builders email address. Thereafter, correspondence over more than three years with regard to the conduct of the arbitration was apparently conducted with the applicant at that email address. The applicant was legally represented and participated from time to time in the arbitration proceeding, but at other times he did not participate.

9. On 4 April 2018, Ms Rooney published her final award in the arbitration. The award reflects it as having been signed and dated in Sydney on that date. In terms of the award, the Indian parties are to pay MCC various sums totalling approximately US$5.8 million, AU$333,000 and HK$138,000 including costs. Provision is also made in the award for interest on the principal sums at 8% per annum.

10. In August 2018, MCC commenced proceedings in the High Court of Delhi in India to enforce the final award in India. I shall refer to this as the Indian proceeding.

The Proceeding in this Court

11. On 29 November 2019, the applicant commenced a proceeding by originating application in this Court in which he sought relief setting aside the final award and costs against MCC. That relief was said to be sought under Art 34 of the Model Law which deals with recourse against an arbitral award. Article 34(2) of the Model Law sets out various limited grounds on which an arbitral award may be set aside at its seat.

12. Subject to other provisions of Pt III of the IAA, s 16(1) of the IAA gives the Model Law the force of law in Australia. In terms of Art 1(1) of the Model Law, it applies to international commercial arbitration. An arbitration is international if the parties to an arbitration agreement...