Yang v S & L Consulting & Anor [2009] NSWSC 223

Yang v S & L Consulting & Anor [2009] NSWSC 223

Enforcement of the award was not contrary to public policy. Clause 6 did not provide the alleged incentive not to comply with migration undertakings, did not affect the Minister's statutory power to cancel a visa, and was not shown to be unlawful. Even if clause 6 were unlawful, the award was not based on it and the clause could be severed without changing the remaining obligations. The translation evidence was sufficient to satisfy s 9 of the International Arbitration Act 1974 (Cth).

Jurisdiction
Australia
Judgment Date
31 March 2009
Procedural Posture
Application to Enforce a Foreign Arbitral Award / Judgment
Outcome
Defendants' objection to enforcement of the award failed; judgment entered for the plaintiff.
Legal Topics
['enforcement of Chinese Arbitral Award' 'public Policy Objection to Enforcement' 'foreign Awards Under the International Arbitration Act 1974 (cth)' 'business Owner Visa and Migration Agent Agreement' 'severance of Allegedly Unlawful Contractual Clause']
['arbitration' 'international Arbitration' 'contract' 'migration Law'] ['enforcement of Chinese Arbitral Award' 'public Policy Objection to Enforcement' 'foreign Awards Under the International Arbitration Act 1974 (cth)' 'business Owner Visa and Migration Agent Agreement' 'severance of Allegedly Unlawful Contractual Clause']

Case Brief

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Procedural Posture

Application to Enforce a Foreign Arbitral Award / Judgment

Legal Issues

  1. 1 ['Whether enforcement of the Chinese arbitral award would be contrary to public policy under s 8(7)(b) of the International Arbitration Act 1974 (Cth).' 'Whether the English translation of the award and arbitration agreement satisfied s 9 of the International Arbitration Act 1974 (Cth).' "Whether clause 6 of the agreement, concerning a guarantee that the plaintiff's permanent residency would not be revoked except for insufficient time in Australia, made the agreement or award contrary to public policy." 'Whether any alleged illegality or public policy defect in clause 6 affected enforcement of the parts of the award based on other clauses.']

Ratio Decidendi

Enforcement of the award was not contrary to public policy. Clause 6 did not provide the alleged incentive not to comply with migration undertakings, did not affect the Minister's statutory power to cancel a visa, and was not shown to be unlawful. Even if clause 6 were unlawful, the award was not based on it and the clause could be severed without changing the remaining obligations. The translation evidence was sufficient to satisfy s 9 of the International Arbitration Act 1974 (Cth).

Court Disposition

Defendants' objection to enforcement of the award failed; judgment entered for the plaintiff.

Orders

  • ['Judgment for the plaintiff for AUD$530,000 plus interest from 11 January 2008 to the date of judgment at 0.021 percent per day.' 'Judgment for the plaintiff for RMB 323,932.60 yuan plus interest from 11 January 2008 to the date of judgment at 0.021 percent per day.' "The defendants pay the plaintiff's costs." 'The...