HI-GENE LIMITED V SWISHER HYGIENE FRANCHISE CORPORATION SC 87/2010
The Supreme Court dismissed leave because the lower courts had reasonably and fairly appraised the factual circumstances, the refusal of adjournment and consequent hearing in absence were not in context sufficiently egregious to amount to a fatal breach of natural justice, and there was no question of general...
Source-derived case information.
- Citation
- SC 87/2010
- Parties
- Applicant: HI-GENE LIMITED; Respondent: SWISHER HYGIENE FRANCHISE CORPORATION
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 3 November 2010
- Procedural Posture
- Enforcement of Foreign Arbitral Award / Application for Leave to Appeal to Supreme Court
- Outcome
- Application for leave to appeal dismissed
- Legal Topics
- Enforcement of Arbitral Awards, Breach of Natural Justice, Adjournment Refusal, Recognition of Foreign Awards
Source-derived case record
Summary, issues, holding and outcome
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Parties
HI-GENE LIMITED
Applicant
SWISHER HYGIENE FRANCHISE CORPORATION
Respondent
Procedural Posture
Enforcement of Foreign Arbitral Award / Application for Leave to Appeal to Supreme Court
Legal Issues
- 1 Whether an arbitral award made in North Carolina should be enforced in New Zealand
- 2 Whether refusal to grant an adjournment and proceeding in the applicant's absence constituted a breach of natural justice
- 3 Whether any such breach required non‑recognition or non‑enforcement of the award
Ratio Decidendi
The Supreme Court dismissed leave because the lower courts had reasonably and fairly appraised the factual circumstances, the refusal of adjournment and consequent hearing in absence were not in context sufficiently egregious to amount to a fatal breach of natural justice, and there was no question of general principle or appearance of miscarriage warranting further appeal.
Court Disposition
Application for leave to appeal dismissed
Orders
- Application for leave to appeal dismissed
- Costs of $2,500 to respondent
Full Case Text
Judgment text and source record
1 paragraphs
HI-GENE LIMITED V SWISHER HYGIENE FRANCHISE CORPORATION SC 87/2010 3 November 2010IN THE SUPREME COURT OF NEW ZEALAND SC 87/2010 [2010] NZSC 132BETWEEN HI-GENE LIMITED Applicant AND SWISHER HYGIENE FRANCHISE CORPORATION Respondent Court: Blanchard, McGrath and William Young JJ Counsel: W G C Templeton and A R Gilchrist for Applicant A C H Clemow for Respondent Judgment: 3 November 2010JUDGMENT OF THE COURTThe application for leave to appeal is dismissed with costs of $2,500 to the respondent. REASONS[1] The proposed appeal concerns whether an arbitral award made in North Carolina, USA should be enforced in New Zealand. It is said that in circumstances where the arbitrators refused the applicant an adjournment shortly before the hearing and then proceeded to hear and determine the matters in dispute in the absence of the applicant, there was a breach of natural justice which required that the award should not be recognised or enforced in this country.[2] Both the High Court 1 and the Court of Appeal 2 disagreed. A proposed appeal therefore would challenge their concurrent conclusions on what, in the end, is a matter of evaluation of the circumstances of the award. [3] Whilst it is possible to be critical of the decision not to grant the adjournment, a consideration of the preceding events and the grounds on which and the manner in which the adjournment was sought leads us to the view that the proposed appeal has no prospect of success. What the arbitrators did was not in context so egregious that is justifies refusal to enforce the award. The Courts below have fairly appraised the situation. No question of general principle arises and there is no appearance of a miscarriage of justice.Solicitors: Foley & Hughes, Auckland for Applicant Gaze Burt, Auckland for Respondent1 Swisher Hygiene Franchise Corporation v Hi-Gene Ltd HC Auckland CIV-2009-404-1573, 2 December 2009 per Duffy J.2 Hi-Gene Ltd v Swisher Hygiene Franchise Corporation [2010] NZCA 359 per Randerson, Potter and Venning JJ.