Formerank Ltd v Luo [2020] NSWSC 1641

Formerank Ltd v Luo [2020] NSWSC 1641

The application for extension of the freezing order was refused because (1) given the detailed and serious challenges in the underlying arbitration, the applicant (Formerank) had not demonstrated sufficient prospects of success to justify the exceptional remedy of a freezing order, (2) there was insufficient evidence of any relevant danger of dissipation of Australian assets, and (3) comity and deference to the arbitral tribunal (as the body best placed to determine the merits and need for interim relief) made it inappropriate for the Supreme Court to exercise its concurrent jurisdiction.

Parties
Plaintiff/respondent: Formerank Ltd; Defendant/applicant: Tie Luo
Jurisdiction
Australia
Judgment Date
18 November 2020
Procedural Posture
Application for Extension of Freezing Order / Interlocutory Judgment/refusal of Extension
Outcome
Application for extension of freezing order refused
Legal Topics
Freezing Orders, Interim Measures, Enforcement of Arbitral Awards, Concurrent Jurisdiction, Comity, Asset Preservation
Civil Procedure Commercial Arbitration International Arbitration Freezing Orders Interim Measures Enforcement of Arbitral Awards Concurrent Jurisdiction Comity +1 more

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Parties

Formerank Ltd

Plaintiff/respondent

Tie Luo

Defendant/applicant

Procedural Posture

Application for Extension of Freezing Order / Interlocutory Judgment/refusal of Extension

Legal Issues

  1. 1 Whether the test for granting a freezing order is satisfied, including 'good arguable case', 'sufficient prospects' and 'danger of dissipation';
  2. 2 Whether the Supreme Court of NSW should exercise its concurrent jurisdiction to make a freezing order in support of a foreign-seated arbitration;
  3. 3 Appropriateness of deference to arbitral tribunals and foreign supervisory courts when interim relief is sought in aid of arbitration

Ratio Decidendi

The application for extension of the freezing order was refused because (1) given the detailed and serious challenges in the underlying arbitration, the applicant (Formerank) had not demonstrated sufficient prospects of success to justify the exceptional remedy of a freezing order, (2) there was insufficient evidence of any relevant danger of dissipation of Australian assets, and (3) comity and deference to the arbitral tribunal (as the body best placed to determine the merits and need for interim relief) made it inappropriate for the Supreme Court to exercise its concurrent jurisdiction.

Court Disposition

Application for extension of freezing order refused

Orders

  • Existing freezing order to expire at 5.00 pm the day after judgment (19 November 2020)