Hui v Esposito Holdings Pty Ltd (No 2) [2017] FCA 728

Hui v Esposito Holdings Pty Ltd (No 2) [2017] FCA 728

The Court set aside only the specified parts of the two partial awards because the infected aspects could be severed without impermissibly rewriting the awards or going beyond the arbitrator's merits determinations. The wholesale setting aside sought by UDP and 5 Star Foods would exceed what was necessary and would infringe the principle of minimal curial intervention. The arbitrator's mandate was terminated, liberty to apply for appointment of a substitute arbitrator was granted, and Esposito was ordered to pay costs on a party-party basis.

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
International Commercial Arbitration / Application to Set Aside Parts of Partial Arbitral Awards and to Terminate the Mandate of the Arbitrator; Orders Made After Earlier Reasons
Outcome
Applications granted; specified parts of the partial awards were set aside, the arbitrator's mandate was terminated, liberty to apply was granted, and costs orders were made against Esposito.
Legal Topics
['setting Aside Arbitral Awards' 'partial Awards' 'removal of Arbitrator' 'minimal Curial Intervention' 'costs']
['arbitration' 'international Commercial Arbitration'] ['setting Aside Arbitral Awards' 'partial Awards' 'removal of Arbitrator' 'minimal Curial Intervention' 'costs']

Case Brief

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Procedural Posture

International Commercial Arbitration / Application to Set Aside Parts of Partial Arbitral Awards and to Terminate the Mandate of the Arbitrator; Orders Made After Earlier Reasons

Legal Issues

  1. 1 ['Whether the Court had power under art 34 of the UNCITRAL Model Law to set aside part of an arbitral award.' 'Whether implied words in a partial award could be treated as part of the award and set aside.' 'Whether the whole of both partial awards had to be set aside, or only the parts infected by the substantiated art 34 grounds.' 'Whether partial setting aside would amount to an impermissible rewriting of the awards.' "Whether the arbitrator's mandate should be terminated and provision made for a substitute arbitrator." 'Whether a lump sum costs order should be made in favour of UDP and 5 Star Foods.']

Ratio Decidendi

The Court set aside only the specified parts of the two partial awards because the infected aspects could be severed without impermissibly rewriting the awards or going beyond the arbitrator's merits determinations. The wholesale setting aside sought by UDP and 5 Star Foods would exceed what was necessary and would infringe the principle of minimal curial intervention. The arbitrator's mandate was terminated, liberty to apply for appointment of a substitute arbitrator was granted, and Esposito was ordered to pay costs on a party-party basis.

Court Disposition

Applications granted; specified parts of the partial awards were set aside, the arbitrator's mandate was terminated, liberty to apply was granted, and costs orders were made against Esposito.

Orders

  • ['The following parts of the partial award made on 12 September 2016 be set aside: in paragraph 1, the word "only", which is implied between the words "subject" and "to"; in paragraph 3, the word "only", which is implied between the words "subject" and "to"; and subparagraphs 4(b), (c) and (d).' 'Paragraph 1 of the...