ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2016] NSWSC 764

ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2016] NSWSC 764

Clause 21 had a continuing operation parallel to Caprock's trustee right of indemnity and applied when Caprock sought to determine and discharge the liability or, if it did not do so, when the Court determined the liability by judgment. It did not operate only at the date the liability first arose or only at a single fixed date. Because Caprock had not discharged the liability earlier, cl 21 limited the enforceable amount to the gross assets of the SAFE Fund as at the date judgment was given enforcing the Award, namely $538,261. The Court rejected Caprock's proposed additional limitation of enforcement to Caprock as trustee for the Fund or to Fund assets only, because Caprock's...

Jurisdiction
Australia
Judgment Date
10 June 2016
Procedural Posture
Equity Corporations List Application Concerning Enforcement of Arbitral Award and Limitation of Trustee Liability / Principal Judgment After Leave Had Been Given to Enforce the Arbitral Award, Determining the Operation of Cl 21 and the Amount Enforceable Against the First Defendant
Outcome
The Plaintiff may enforce the Award against the First Defendant in the sum of $538,261; parties to be heard as to costs.
Legal Topics
['construction of Limitation of Liability Clause' 'trustee Liability Limited to Trust Assets' 'trustee Right of Indemnity, Recoupment and Exoneration' 'enforcement of Foreign Arbitral Award' 'form of Orders Against Corporate Trustee']
['contract Law' 'trusts' 'international Arbitration' 'civil Procedure' 'corporations'] ['construction of Limitation of Liability Clause' 'trustee Liability Limited to Trust Assets' 'trustee Right of Indemnity, Recoupment and Exoneration' 'enforcement of Foreign Arbitral Award' 'form of Orders Against Corporate Trustee']

Case Brief

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Procedural Posture

Equity Corporations List Application Concerning Enforcement of Arbitral Award and Limitation of Trustee Liability / Principal Judgment After Leave Had Been Given to Enforce the Arbitral Award, Determining the Operation of Cl 21 and the Amount Enforceable Against the First Defendant

Legal Issues

  1. 1 ["Whether cl 21 of the Contract limited Caprock's liability by reference to the assets of the SAFE Fund at the date the liability was incurred, at the date of the arbitral award or judgment, or at another point in time." 'Whether the assets referred to in cl 21 were gross assets or net assets of the Fund.' 'Whether the order enforcing the Award should limit enforcement to Caprock as trustee for the SAFE Fund or to assets of that Fund only.']

Ratio Decidendi

Clause 21 had a continuing operation parallel to Caprock's trustee right of indemnity and applied when Caprock sought to determine and discharge the liability or, if it did not do so, when the Court determined the liability by judgment. It did not operate only at the date the liability first arose or only at a single fixed date. Because Caprock had not discharged the liability earlier, cl 21 limited the enforceable amount to the gross assets of the SAFE Fund as at the date judgment was given enforcing the Award, namely $538,261. The Court rejected Caprock's proposed additional limitation of enforcement to Caprock as trustee for the Fund or to Fund assets only, because Caprock's...

Court Disposition

The Plaintiff may enforce the Award against the First Defendant in the sum of $538,261; parties to be heard as to costs.

Orders

  • ['Insofar as the Court has given leave to the Plaintiff to enforce the award by Prof Dr Sabastien Besson, Mr Daniel Hochstrasser and Mr David Unterhalter in Geneva, Switzerland, published on 20 January 2015 and notified to the Plaintiff and the First Defendant, in the sum of US$2 million plus costs of US$384,000 and...