Sharma v Military Ceramics Corporation [2020] FCA 216

Sharma v Military Ceramics Corporation [2020] FCA 216

The applicant had ample notice of the hearing and of his solicitor's intended withdrawal, gave an unconvincing explanation for needing an adjournment, identified no defence to the interlocutory application, and an adjournment risked significant prejudice to the first respondent by delaying the Indian enforcement proceeding. The evidence established that the applicant received the final arbitral award well before 29 August 2019, including on 6 April 2018 and 12 February 2019, and also on or shortly after 6 August 2019. Because the originating application filed on 29 November 2019 was outside the three month period required by Art 34(3) of the Model Law, the applicant had no reasonable...

Jurisdiction
Australia
Judgment Date
20 February 2020
Procedural Posture
Application to Set Aside an International Commercial Arbitral Award Under Art 34 of the UNCITRAL Model Law on International Commercial Arbitration; Interlocutory Application for Summary Dismissal / Hearing of the Applicant's Adjournment Application and the First Respondent's Interlocutory Application for Summary Dismissal
Outcome
Adjournment application dismissed; originating application summarily dismissed; applicant ordered to pay the first respondent's costs.
Legal Topics
['adjournment of Interlocutory Application' 'summary Dismissal' 'application to Set Aside Arbitral Award' 'three Month Time Limit Under Art 34(3) of the UNCITRAL Model Law' 'receipt of Arbitral Award']
['practice and Procedure' 'international Commercial Arbitration'] ['adjournment of Interlocutory Application' 'summary Dismissal' 'application to Set Aside Arbitral Award' 'three Month Time Limit Under Art 34(3) of the UNCITRAL Model Law' 'receipt of Arbitral Award']

Case Brief

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Procedural Posture

Application to Set Aside an International Commercial Arbitral Award Under Art 34 of the UNCITRAL Model Law on International Commercial Arbitration; Interlocutory Application for Summary Dismissal / Hearing of the Applicant's Adjournment Application and the First Respondent's Interlocutory Application for Summary Dismissal

Legal Issues

  1. 1 ["Whether the hearing of the first respondent's interlocutory application should be adjourned to a date at the end of April or in May 2020." "Whether the applicant's application to set aside the arbitral award was made within three months from the date on which he received the award as required by Art 34(3) of the UNCITRAL Model Law." 'When the applicant received the final arbitral award.' 'Whether the applicant had no reasonable prospect of successfully prosecuting the proceeding so that the originating application should be summarily dismissed.']

Ratio Decidendi

The applicant had ample notice of the hearing and of his solicitor's intended withdrawal, gave an unconvincing explanation for needing an adjournment, identified no defence to the interlocutory application, and an adjournment risked significant prejudice to the first respondent by delaying the Indian enforcement proceeding. The evidence established that the applicant received the final arbitral award well before 29 August 2019, including on 6 April 2018 and 12 February 2019, and also on or shortly after 6 August 2019. Because the originating application filed on 29 November 2019 was outside the three month period required by Art 34(3) of the Model Law, the applicant had no reasonable...

Court Disposition

Adjournment application dismissed; originating application summarily dismissed; applicant ordered to pay the first respondent's costs.

Orders

  • ["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." 'In...