Simple Investments Pty Ltd v Bradley St Development Vic Pty Ltd [2026] VSC 510

IN THE SUPREME COURT OF VICTORIA

Not Restricted

Commercial Court

Arbitration List

S ECI 2026 00413

Simple Investments Pty Ltd (ACN 126 883 252) as trustee for the Simple Investment Property Trust	Applicant
v
Bradley St Development Vic Pty Ltd (ACN 607 230 884)	First Respondent
Arram Developments Pty Ltd (ACN 097 896 412)	Second Respondent

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JUDGE:	Croft J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2026
DATE OF JUDGMENT:	11 August 2026
CASE MAY BE CITED AS:	Simple Investments Pty Ltd v Bradley St Development Vic Pty Ltd
MEDIUM NEUTRAL CITATION:	[2026] VSC 510

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ARBITRATION — Commercial Arbitration Act 2011 (Vic) ss 18, 35, 36 — Application for enforcement of arbitral awards — Where enforcement resisted on basis of alleged denial of procedural fairness — Where arbitrator determined matter outside parties’ list of issues — Where allegation that arbitrator’s failure to order account of profits prior to quantum finding constituted procedural unfairness — Where allegation of no reasonable opportunity to present its case — TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361 — Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326 — Corporacion Transnacional de Inversiones SA de CV v STET International SpA (1999) 45 OR (3d) 183 — China Machine New Energy Corp v Jaguar Energy Guatemala LLC [2020] SGCA 12 — CAJ v CAI [2021] 1 SLR 505 — No denial of procedural fairness — Awards not contrary to public policy — Awards enforced. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A C Blair	G&M Lawyers
For the Respondents	Mr A G Rollnik and Dr D Stamboulakis	Merlo Legal

TABLE OF CONTENTS

Introduction………………………………………………………………………………………………………………………. 1

The Arbitral Proceeding………………………………………………………………………………………………… 2

The enforcement of arbitral awards………………………………………………………………………………….. 4

Denial of procedural fairness and contrary to public policy………………………………………….. 8

The Respondents’ submissions……………………………………………………………………………………….. 12

Unable to present its case – s 36(1)(a)(ii)………………………………………………………………………. 13

Beyond scope of submission – s 36(1)(a)(iii)………………………………………………………………… 15

Simple Investments’ submissions…………………………………………………………………………………… 16

The misappropriation claim………………………………………………………………………………………… 16

The quantum claim……………………………………………………………………………………………………… 18

The draft award…………………………………………………………………………………………………………… 21

Analysis……………………………………………………………………………………………………………………………. 22

Within the four corners of the arbitration……………………………………………………………………. 23

List of issues and non-taking of profits……………………………………………………………………….. 26

The draft award…………………………………………………………………………………………………………… 29

Conclusion and orders…………………………………………………………………………………………………….. 32

HIS HONOUR:

Introduction

1. This is an application pursuant to s 35 of the Commercial Arbitration Act 2011 (the Act) for the enforcement of two arbitral awards made on 13 September 2025 (Interim Award) and 12 January 2026 (Final Award).
2. By its Amended Originating Application to Enforce Award filed 24 March 2026, the Applicant (Simple Investments) seeks orders that each of the Interim Award and Final Award be enforced against the First Respondent (Bradley St Development) and Second Respondent (Arram Developments) (collectively the Respondents), as if the awards were a judgment or order of this Court.  Simple Investments does not seek to enforce the awards against the third respondent to the arbitration proceeding (Carlo Marra or Mr Marra).  Mr Marra is a director of Bradley St Development, and the sole director and shareholder of Arram Developments.
3. In opposition to enforcement, the Respondents contend that enforcement of the awards should be refused pursuant to s 36 of the Act on the basis that it was denied procedural fairness and, or in the alternative, because enforcement would be contrary to public policy.^[1]
4. The evidence before the Court is contained in the following affidavits:
   1. Affidavit of Steve Katsimadakos sworn on 27 January 2026 (First Katsimadakos Affidavit);
   2. Affidavit of Steve Katsimadakos sworn on 27 February 2026 (Second Katsimadakos Affidavit);
   3. Affidavit of Mario Merlo sworn on 20 April 2026 (First Merlo Affidavit);
   4. Affidavit of Mario Merlo sworn on 20 April 2026 (Second Merlo Affidavit); and
   5. Affidavit of Carlo Marra sworn on 24 April 2026 (Marra Affidavit).

The Arbitral Proceeding

5. By joint venture agreement dated 17 December 2015 (JV Agreement), the parties to this proceeding entered into a contract for the construction and sale of residential properties.  The JV Agreement was subsequently amended once by agreement on 9 September 2016.
6. Pursuant to cl 12.1 of the JV Agreement, the parties provided that disputes arising out of their contract would be resolved by arbitration:^[2]

All disputes, differences or questions whatsoever arising between the Joint Venture Parties (or any of them) at any time after the date of this Agreement (whether during the term of this Agreement or upon or after its determination or discharge) touching or concerning or arising out of or in connection with this Agreement, including:

a) the construction, meaning or operation or effect of this Agreement or any clause thereof; or

b) the powers, rights, duties or liabilities of the Joint Venture Parties hereto or any of them under or by virtue of this Agreement or otherwise; or

c) any other matter whatsoever in any way connected with or arising out of or in relation to the Business or this Agreement;

must be referred to mediation, and failing resolution then to arbitration in accordance with the terms of this clause before the Joint Venture Parties may commence any court proceedings, unless urgent interlocutory relief is sought by any Joint Venture Party.

7. Clause 12.9 of the JV Agreement provided that the arbitration is to be conducted in accordance with the laws governing commercial arbitration in Victoria.^[3]
8. In 2019, the parties fell into dispute, and following an unsuccessful mediation, on 19 November 2019, Simple Investments sought the appointment of an arbitrator to arbitrate the parties’ dispute.  On 28 April 2020, the parties were informed that Mr Steven White had been appointed as arbitrator by the Law Institute of Victoria.
9. The arbitral proceeding was protracted.  The arbitration hearing was conducted over three days in December 2024.  On 13 September 2025, following the publication of the draft award on 7 March 2025, and having accepted further submissions from the parties on the draft award, the arbitrator made the Interim Award.  The Interim Award ordered, inter alia, that ‘[Arram Developments] shall forthwith repay to the joint venture the misappropriated sum of $679,599.00 to be paid into the trust account of [Simple Investments’] solicitors to be held for [Simple Investments] and [Bradley St Development] jointly.’^[4]
10. In totality, the arbitrator made the following orders:^[5]
    1. The Third Respondent was the sole director and shareholder of the Second Respondent since 23 July 2015 from which time he was its controlling mind and embodiment.
    2. The Third Respondent knowingly caused the sum of $679,599.00 belonging to the Joint Venture to be transferred into a bank account or accounts controlled by the Second Respondent.
    3. The Second Respondent shall forthwith repay to the joint venture the misappropriated sum of $679,599.00 to be paid into the trust account of the Claimant’s solicitors to be held for the Claimant and First Respondent jointly.
    4. The Second Respondent must forthwith specifically perform the joint venture agreement by:
    1. providing the Claimant with access to the Books and records of the joint venture;
    2. providing to the Claimant full reports on the business of the joint venture and the results thereof, including without limitation itemised income, outgoing, charges and expenses;
    3. making available for the Claimant’s inspection up to date records relating to the joint venture and business of the joint venture, including without limitation details of all income, outgoings, charges and expenses;
    4. causing the books of account, registers and other records of each of the (i) joint venture; and (ii) the Claimant, insofar as the same relates to the Joint Venture and the joint venture business, to be audited by independent auditors to be agreed by the parties in accordance with clause 3.3(d).
       5. The net proceeds of the Joint Venture shall be distributed equally in accordance with clauses 2.9 and 9.2 of the Joint Venture Agreement as amended and pursuant to which, the First and Second Respondents shall forthwith pay to the Claimant the sum of $289,244.
       6. The First and Second Respondent shall forthwith pay interest on this award pursuant to statute to the Claimant.
       7. The Crossclaim is dismissed.
       8. Costs reserved.
11. On 12 January 2026, the arbitrator made the Final Award, ordering the Respondents ‘jointly and severally forthwith pay [Simple Investments] its costs fixed in the sum of $560,200.30’.^[6]
12. Despite its repeated requests, Simple Investments has not, to date, received payment of the sum of $679,599.00 or $560,200.30 in satisfaction of the arbitrator’s awards.  Accordingly, it seeks to engage the Court’s curial powers to enforce each of the Interim Award and Final Award against Bradley St Development and Arram Developments.  

The enforcement of arbitral awards

13. The principles applicable to the enforcement of arbitral awards are well defined and, appropriately, are not in substantial dispute between the parties.  Nonetheless, I consider it useful to rehearse those general principles before turning to their application in the context of the parties’ dispute.
14. The starting point for enforcement is s 35 of the Act by which the legislature has vested in this Court the power to recognise and enforce an award rendered by the arbitral tribunal:
    1. An arbitral award, irrespective of the State or Territory in which it was made, is to be recognised in this State as binding and, on application in writing to the Court, is to be enforced subject to the provisions of this section and section 36.
    2. The party relying on an award or applying for its enforcement must supply the original award or a copy of the original award.
    3. If the award is not made in English, the Court may request the party to supply a translation of it into English.
15. Section 35 provides that the Court’s power to enforce the arbitral award is subject to s 36, which is headed ‘Grounds for refusing recognition or enforcement’, and states:
    1. Recognition or enforcement of an arbitral award, irrespective of the State or Territory in which it was made, may be refused only—
    a. at the request of the party against whom it is invoked, if that party furnishes to the Court proof that—
    1. a party to the arbitration agreement was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of the State or Territory where the award was made; or 
    2. the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party’s case; or
    3. the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or
    4. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the State or Territory where the arbitration took place; or
    5. the award has not yet become binding on the parties or has been set aside or suspended by a court of the State or Territory in which, or under the law of which, that award was made; or
       b. if the Court finds that—
       i. the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
       ii. the recognition or enforcement of the award would be contrary to the public policy of this State.
16. By the express language of s 36(1)(a), the party seeking to resist the enforcement of the award bears the onus of establishing one or multiple of the s 36 grounds.^[7]
17. Accordingly, the legislative framework operates to impose a prima facie position that, the applicant having supplied to the Court a copy of the award it seeks to have enforced, the Court is to recognise and enforce that award unless satisfied that the respondent has adduced sufficient evidence of a basis warranting refusal under s 36.  
18. It must be mentioned in passing that there are also the ‘set aside’ and ‘appeal’ powers provided by ss 34 and 34A respectively, though those powers play no function in this proceeding.
19. Having examined the legislative framework, I turn briefly to the settled authorities on the Court’s powers vis‑à‑vis enforcement.
20. In the seminal Full Federal Court decision of TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (TCL Air Conditioner),^[8] Allsop CJ, Middleton and Foster JJ set out a series of important principles regarding the enforcement, and refusal of enforcement, of arbitral awards.
21. Firstly, the grounds for refusing recognition or enforcement under s 36 are exhaustive and, where engaged, the Court must act decisively:^[9]

The appropriate balance between swift enforcement and legitimate testing of grounds under Arts 34 and 36 is critical to maintain; essential to it is courts acting prudently, sparingly and responsibly, but decisively when grounds under Arts 34 and 36 are revealed. An important part of that balance is the protection by the courts of the fundamental norms of fairness and equality embodied in the rules of natural justice within the concept of public policy.

22. Secondly, the party seeking to resist enforcement must be able to establish the existence of a ‘real unfairness’ or ‘real practical injustice’.  That existence must be demonstrable with ‘tolerable clarity and expedition’.^[10]
23. Thirdly, the existence of a denial of opportunity to be heard on ‘an important and material issue’ is sufficient to establish ‘real unfairness’ or ‘real practical injustice’.^[11]
24. Finally, and perhaps most importantly, a party’s attempt to resist enforcement under s 36 of the Act is no invitation for the Court to revisit the merits of the arbitral proceeding.  In this context, it is important to once again reiterate that the Act, and the UNICTRAL Model Law on International Commercial Arbitration (Model Law) on which it is based, is predicated on a policy of minimal curial intervention.  To that end, their Honours emphasised that the party purporting to have suffered ‘unfairness’ or ‘practical injustice’ must be able to establish that conduct in short compass, and a devolution into the ‘detailed re‑examination of the facts’ should properly be resisted:^[12]

In most, if not all, cases a party who says that it has suffered such unfairness or practical injustice should be able to demonstrate that without the kind of detailed re‑examination of the facts that occurred in this case. Applications involving review, enforcement and recognition under Arts 34, 35 and Art 36 (or Art V of the New York Convention) should not be permitted to be used (or hijacked) to undertake, in substance, a rehearing of factual or legal reasoning under the guise of a complaint about a breach of the rules of natural justice based on the ‘no evidence rule’. Unfairness or practical injustice in the conduct of international commercial arbitration should, if it exists, be able to be expressed shortly and, likewise, demonstrated tolerably shortly. It will not be demonstrated as a result of a detailed factual analysis of evidence regularly and fairly brought forward involving asserted conclusions of facts different to those reached by the arbitrator. If a party can demonstrate that it has been, in essence, denied the opportunity to be heard on an important and material issue as revealed by such a finding made without material, real unfairness or real practical injustice may be shown.

25. It is important to note that whilst TCL Air Conditioner concerned the application of the International Arbitration Act 1974(Cth), those same considerations are applicable to domestic arbitrations conducted under the Act.^[13]

Denial of procedural fairness and contrary to public policy

26. The Respondents’ principle claims in resisting the enforcement of the arbitral awards are threefold:^[14]
    1. in breach of s 36(1)(a)(ii) of the Act, it was unable to present its case on the central matters decided by the arbitrator;
    2. in breach of s 36(1)(a)(iii) of the Act, the arbitrator decided matters beyond the scope of the parties’ submission to the arbitration; and/or
    3. in breach of s 36(1)(b)(ii) of the Act, the enforcement of the arbitrator’s orders would be contrary to the public policy of this State.
27. The first two of its claims under ss 36(1)(a)(ii) and (iii) fall under the broad scope of ‘denial of procedural fairness’, and reflects s 18 of the Act, which provides for the ‘equal treatment of parties’:

The parties must be treated with equality and each party must be given a reasonable opportunity of presenting the party’s case.

Note 

This section differs from the Model Law to the extent that it requires a party to be given a ‘reasonable’, instead of ‘full’, opportunity of presenting the party’s case.  

[emphasis added]

28. The language prescribed by s 18 is intentionally narrower than that prescribed by the Model Law, providing that parties are required to be given a ‘reasonable’ rather than ‘full’ opportunity to present their case.  In practical effect however, that narrower prescription plays no operative distinction today—the Hong Kong Court of Appeal determining in 2014 that the ‘full opportunity’ to present one’s case ‘cannot mean that a party is entitled to present any case it pleases, any time it pleases, no matter how long the presentation should take’.^[15]  In Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd (Amasya), I determined that, in the context of the respective legal instruments, the words ‘reasonable’ and ‘full’ as used in s 18 of the Act and art 18 of the Model Law impose the same standard.^[16]  That determination has subsequently been followed by a decision of this Court and a decision of the Queensland Court of Appeal.^[17]
29. It follows therefore that, in order to cast the scope of s 18, and as a byproduct, that of ss 36(1)(a)(ii) and (iii), regard may be had to international authorities examining the application of the Model Law equivalent of those provisions.
30. In Corporacion Transnacional de Inversiones SA de CV v STET International SpA, the Ontario Superior Court of Justice held:^[18]

The purpose of art 18 is to protect a party from egregious and injudicious conduct by … [an arbitral tribunal]. It is not intended to protect a party from its own failures or strategic choices.

31. In Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH, the Singaporean High Court held:^[19]

Whether a party was or was not able to present its case at the arbitration is very much a question of fact and degree, and it necessarily focuses on the overall conduct of the proceedings with particular attention paid to the conduct of the tribunal and the parties themselves.

32. Finally, in CNG v G, the Hong Kong Court of First Instance said:^[20]

No party can claim the right to have all the time it needs to prepare for the hearing. Article 34(2)(a)(ii) of the Model Law permits the Court to set aside an award if a party was ‘unable to present’ its case. What the courts seek to enforce and protect is a standard of due process which can satisfy basic minimum requirements and are generally accepted as essential to a fair hearing.

33. Those authorities, amongst many others, make clear that the Court’s role in relation to an allegation for breach of procedural fairness is necessarily confined.  If satisfied that the basic requirements of procedural fairness have been afforded to the parties, even if it would otherwise have exercised its discretion differently, the Court must not disturb the decision of the tribunal and ought to enforce the award.
34. I turn now to the scope of the ‘contrary to public policy’ ground.  Perhaps unsurprisingly, this ground for refusal has suffered great notoriety and controversy, due largely to the difficulties that courts have faced in defining, with sufficient precision, its scope.^[21]
35. It is therefore desirable, in my view, to make a few brief observations on the scope of this ground of refusal.
36. First, its scope should not be cast so wide as to cure ‘mere procedural imperfections’, but rather is aimed at rights which are ‘fundamental’ to our legal system.^[22]  To that end, the Singaporean Court of Appeal said:^[23]

In our view, [the public policy ground] should only operate in instances where the upholding of an arbitral award would ‘shock the conscience’ or is ‘clearly injurious to the public good or … wholly offensive to the ordinary reasonable and fully informed member of the public’, or where it violates the forum’s most basic notion of morality and justice.

37. Second, the threshold for establishing that an award is ‘contrary to public policy’ is high, and not readily overcome.  There are obvious policy considerations supporting this view, not least the importance of encouraging, supporting and facilitating the enforcement of awards, and, by extension, the efficient and certain dispute resolution process of international trade and commerce.^[24]
38. Third, courts must be alive to the risk that the ‘contrary to public policy’ ground may be sought to be used by parties as a ‘backdoor’ or ‘escape route’ method to circumvent the arbitral tribunal’s award.  In that sense, as discussed above,^[25] courts must resist the temptation to review the merits of the award in its assessment of whether the award is contrary to public policy.^[26]
39. The Respondents advanced the ‘contrary to public policy’ ground in tandem with its denial of procedural fairness arguments, and conceded that the public policy ground stood with its other arguments rather than as an independent, standalone basis for resisting enforcement.^[27]  Consequently, and for the reasons which follow, in particular as a result of the Respondents’ ‘contrary to public policy’ argument being founded on the bedrock of allegations it was denied procedural fairness, there are no practical differences between these grounds in the present context, and so I will examine them together.  Without intending to belabour the point, it must be recognised that this analysis cannot be taken to mean that these grounds are intrinsically linked in every and all applications to resist enforcement or for set aside.  In Amasya, I noted the distinction between these separate grounds:^[28]

The ‘public policy’ ground is directed towards contraventions of ‘fundamental principles of justice and morality’ of Victoria. By contrast, the ‘unable to present its case’ ground focuses on whether the party seeking to set aside the award has been accorded procedural fairness. As the following reasons show, this point may be a distinction without a difference in the present context because the requirement that parties in arbitrations be accorded procedural fairness or natural justice within the meaning of those terms in the relevant legislative context is part of the public policy of Victoria, and for that matter, Australia.

The Respondents’ submissions

40. In short compass, the Respondents seek to impugn the arbitrator’s award on the basis of two findings:^[29]
    1. First, a monetary order against Arram Developments for $679,599.00, which the Respondents say exceed the claim as pleaded and opened by Simple Investments.
    2. Second, a declaration that Mr Marra ‘knowingly caused’ that sum to be misappropriated, in circumstances where the Respondents say they were not given any opportunity to meet a live, particularised and adversarially tested case in that form prior to close of evidence.
41. The Respondents say that the misappropriation claim as originally pleaded in Simple Investments’ Amended Points of Claim dated 29 November 2022 (APOC) was for an unspecified sum contingent on a taking of accounts.^[30]  This was subsequently quantified in its written opening case dated 9 October 2024 as being $375,104.00:^[31]

There were many items received into and paid out of the Arram’s bank account which related to Carlo Marra’s personal transactions. These were treated as such. The net amount of these transactions show in his loan account and total $375,104.

42. Accordingly, its position is that, at no point prior to the publication of the draft award on 7 March 2025 did Simple Investments advance a claim specifically for recovery of $679,599.00 and, accordingly, the arbitrator erred in making this award.
43. Similarly, in relation to the ‘knowingly caused’ finding, Simple Investments made no reference, in its pleaded or written case, to the allegation that Mr Marra ‘knowingly caused’ the money to be misappropriated until its written submissions dated 27 June 2025, filed in response to the publication of the draft award.^[32]
44. On either or both of these grounds, the Respondents say the Court should refuse to enforce both the Interim Award and the Final Award on the basis that it was denied procedural fairness (ss 36(1)(a)(ii) and (iii)) or that the award was contrary to public policy (s 36(1)(b)(i)).

Unable to present its case – s 36(1)(a)(ii)

45. It is the Respondents’ contention that the arbitrator’s award with respect to the $679,599.00 monetary order was made on a case it did not have a fair opportunity to meet.
46. Firstly, as discussed above,^[33] the claim was only pleaded contingently, on the taking of accounts.  By the relief sought in its APOC, Simple Investments sought, inter alia, that:^[34]

Following the taking of accounts: any amounts found to have been misappropriated by the Respondent, Arram and/or Marra be repaid to the joint venture.

47. The arbitrator’s Interim Award, both in its draft form, and later its published final form, declined to order a taking of accounts.^[35]  Nonetheless, the arbitrator concluded that Arram Developments was liable for the specific sum of $679,599.00.  The Respondents say that this conclusion could not have been reasonably reached in light of the absence of specific transactions justifying this figure and that, in any case, it was entitled to proceed on the basis that this contingent claim did not require a substantive evidentiary answer at the hearing.
48. Secondly, the monetary claim did not form part of the six issues for determination, agreed to by the parties’ respective solicitors on 24 October 2024 ahead of the hearing.^[36]  Following the publication of the arbitrator’s draft award, Simple Investments, by its written submissions as to the form of orders, contended that the arbitrator need not be confined by the parties’ list of issues.^[37]  The Respondents say this recognises that the monetary order was not ‘squarely contained’ within the agreed list of issues.^[38]
49. Thirdly, Simple Investments opened its case, in its written opening submissions dated 9 October 2024, as being a principal money claim as (a) the net profit share claim of $426,268.00 and (b) the improperly withdrawn sum as $375,104.00, not the $679,599.00 ultimately ordered.^[39]  Despite the arbitrator’s invitation for the parties to amend and re‑file their written openings to reflect their oral openings, Simple Investments did not seek to do so and, accordingly, did not advance or address a misappropriation claim for the sum of $679,599.00.^[40]
50. Fourthly, the specific claim for the sum of $679,599.00 was not referenced in any of Simple Investments’ written or oral submissions prior to the publication of the draft award.^[41]
51. Fifthly, the allegation of misappropriation was never put to Mr Marra during his cross‑examination and, consequently, he was not given a fair opportunity to respond to that claim.^[42]
52. Finally, the claim pursued by Simple Investments was not squarely put to the Respondents, and viewed in totality, it was not provided adequate notice of, and a fair opportunity to meet, the adverse case ultimately found against it.   The only basis in which the $679,599.00 formed part of Simple Investments’ claim rested upon the conclusionary statement of the Ellem expert report, and a line item in a spreadsheet.  Accordingly, the failure to properly itemise this claimed sum into its constituent parts rendered the Respondents unable to address and interrogate those allegations made against it.^[43]

Beyond scope of submission – s 36(1)(a)(iii)

53. Further or alternatively, the Respondents say the Court should refuse to enforce the arbitrator’s award on the basis it determined matters outside the scope of the arbitration.^[44]
54. It is uncontroversial that arbitration is a necessarily consensual process: the parties agree to bypass the courts as the usual forum for determination of their dispute to instead have this dispute heard and resolved by a private arbitral tribunal.  Accordingly, it stands to reason that the arbitrator’s mandate is constrained by the parties’ agreement—indeed, unlike a court, arbitral tribunals have a much narrower scope to determine matters outside the parties’ express agreement.^[45]  Where an arbitral tribunal determines issues outside the scope in which it is constituted to resolve, its award will offend s 36(1)(a)(iii) of the Act (and art 36(1)(a)(iii) of the Model Law), and be liable to be set aside or refused enforcement.
55. This basis for refusing enforcement necessitates a two‑pronged examination:
    1. first, what are the matters within the scope of submission to the arbitrators; and
    2. second, does the arbitrator’s award involve matters outside that scope.
56. The factual enquiry involves consideration of the materials put forth during the arbitral proceeding, and includes but is not necessarily limited to the parties’ pleadings, any agreed list of issues, written and oral submissions, and any evidence adduced.^[46]  A matter may fall outside the scope of the submission to the arbitrator if it does not bear a ‘close nexus’ to or be ‘intertwined with’ the issues framed by the parties.^[47]
57. For the same reasons the Respondents advanced in support of its argument that it was unable to put its case, the Respondents say the arbitrator decided a matter outside the scope of the arbitration.^[48]

Simple Investments’ submissions

58. The genesis of Simple Investments’ response to the Respondents’ claims is that the Respondents have sought, in resisting the enforcement of the award, to challenge the factual findings of the arbitrator in a manner disguised as a complaint about denial of procedural fairness and natural justice.  It says that the findings made by the arbitrator were squarely put in the arbitration, the Respondents were put on proper notice of the claims, and the awards ultimately adverse to the Respondents were a consequence of the Respondents’ own forensic decisions throughout the arbitral process.  Accordingly, Simple Investments contends that it is not open to this Court to refuse enforcement under any of the grounds set out in s 36 of the Act.

The misappropriation claim

59. By the relief sought in paragraph 54(f)(a) of its APOC, Simple Investments sought that:^[49]

Following the taking of accounts: any amounts found to have been misappropriated by the Respondent, Arram and/or Marra be repaid to the joint venture.

60. Further, what immediately preceded the relief sought in its APOC were a series of allegations with respect to Mr Marra’s intermingling of joint venture funds:^[50]

Arram was a private company used by the Carlo Marra family. As identified by MVA Bennett, Arram did not maintain a separate bank account for the joint venture which resulted in the mixing of joint venture funds with those of the Carlo Marra Family.

Financial transactions were not properly recorded and a taking of accounts is required to determine the joint venture’s true financial position.

According to MVA Bennett:

‘There were many items received into and paid out of the Arram’s bank account which related to Carlo Marra’s personal transactions. These were treated as such. The net amount of these transactions show in his loan account and total $375,104.’

Following completion of a taking of accounts, Carlo Marra should be required to repay all amounts that were improperly withdrawn by him.

61. Read together, Simple Investments says this presents clear evidence that the misappropriation claim was put squarely to the Respondents, and the arbitrator’s liability findings with respect to the $679,599.00 figure did not constitute a denial of procedural fairness.
62. In addition to its APOC, Simple Investments filed a witness statement of Mr Blitsas, its director, which was tendered into evidence in the arbitral proceeding following his adoption of that statement.  In that statement, Mr Blitsas deposed to Mr Marra’s misappropriation of the joint venture funds for his personal benefit:^[51]

Some of the key findings were that Aram [sic] Developments Pty Ltd at the direction of Mr Carlo Marra has misappropriated funds from the Joint Venture and had used those funds for his personal benefit.

63. Despite being in possession of Mr Blitsas’ witness statement more than one year prior to the hearing of the arbitration, and Mr Marra’s own witness statement having been prepared after the Respondents came into possession of Mr Blitsas’ witness statement,^[52] that issue was not expressly dealt with or answered.  Instead, Mr Marra deposed only to the fact that:^[53]
    a) any potential overclaim with respect to input tax credits has been resolved with the Australian Tax Office. Moreover, Simple, Blitsas nor any other entity related to the claimant in the proceed [sic] has been required to, or asked to make any payment to the Australian Tax Office; and
    b) I cannot respond to the remainder of the above paragraphs as they relate to matters outside of my knowledge.
64. In those circumstances, Simple Investments says the Respondents are not able to substantiate a claim that they were unaware of the misappropriation allegation or deprived of a reasonable opportunity to meet it.

The quantum claim

65. There is also the further issue regarding the specific quantum found by the arbitrator, being the $679,599.00 figure.  
66. Whilst I have cautioned against the readiness of courts to examine the rationale and basis behind the arbitral tribunal’s decisions, else enlivening the risk of delving into impermissible merits review, Simple Investments says the context in which the tribunal’s decision was reached is a necessary condition of its impeachment of the allegation of procedural unfairness.  For the reasons which follow, I accept that submission, and turn now to consider the context of the arbitrator’s quantification of this misappropriation sum.  This consideration, however, is limited to the examination of whether, in arriving at this conclusion, the arbitrator afforded the Respondents procedural fairness, and I make no observations as to the correctness of that decision.
67. To that end, Simple Investments contends that it is the Respondents’ own forensic failures which rendered the misappropriation sum, rather than any denial of procedural fairness.^[54]
68. By procedural order dated 27 April 2021, the arbitrator made an order for discovery of documentary records relevant to the arbitral proceeding.^[55]  Those documents were never produced, despite the Respondents having ample time prior to the hearing to do so.^[56]  One such set of documentary records sought by Simple Investments pertained to the funds cumulatively distributed from Arram Developments’ bank account to an account in Mr Marra’s name.  The evidentiary record available in the arbitral proceeding indicated that this sum totalled $679,599.00, however, there was no accounting of what purposes those funds were transferred for, whether legitimate or otherwise.  That record lay solely with the Respondents,^[57] who, despite repeated attempts, including an attempt to subpoena the documents, resisted production.^[58]
69. Accordingly, Simple Investments says it was wholly impeded from being able to undertake a proper forensic analysis of the true financial position behind its misappropriation claim, and the absence of particulars therefore lay solely with the Respondents.^[59]
70. As a consequence of its inability to particularise the misappropriation claim, Simple Investments made post‑hearing written submissions to the arbitrator that, by virtue of the Respondents seeking to obfuscate the arbitral process by resisting the production of documents which would enable proper accounting, it was open to the arbitrator to conclude by adverse inference that the entire $679,599.00 sum be considered as the misappropriated funds:^[60]

In circumstances where Arram has failed to properly maintain, and adduce into evidence, the records of the JV (including without limitation the tax invoices issued by suppliers from time to time), the Tribunal can and should infer that (save and except where proven otherwise):

a. All money into and out of the bank account controlled by Arram utilised for the purposes of the JV, were the JV’s funds; and

b. Arram’s expenses recorded in its Business Activity Statements are expenses of the JV.

It was for Arram to prove:

a. the actual costs of the JV paid to suppliers in circumstances where it was the sole custodian of those records; and

b. that money coming into and out of its account were for purposes other than the JV.

Arram failed to do so and accordingly the Tribunal should draw inferences in the strongest way against Arram, consistent with the directions to the jury by Pratt CJ in Armory.

71. This submission ultimately found favour with the arbitrator, who determined under the subheading titled ‘Missing Documents’ that:^[61]

[I]t is appropriate to make some findings in relation to the ‘missing’ critical documents, namely supplier invoices.

There is no dispute that the Claimant and the witnesses did not have access to those documents to prepare for trial.

Each of the expert witness’s preparation and evidence was seriously affected by the lack of invoices.

Putting aside the obligations of the parties under the Civil Procedure Act the Tribunal accepts the submissions of the Claimant at [5.135] to [5.150] above and that appropriate inferences need to be found and the Tribunal makes those findings.

That said, the Tribunal does not find that the missing documents (namely supplier invoices) were or are in the possession of the Respondents’ solicitors.

72. Perhaps more damningly, the arbitrator’s concluding remarks of his Interim Award found that:^[62]

The Respondents have at all times sought to obfuscate and bifurcate this process.

[T]he Respondents have withheld critical documents.

73. Simple Investments’ position is therefore that this chain of events and, in particular, the Respondents’ voluntary forensic decision not to disclose documents evincing that those funds were used for a legitimate purpose, was the ultimate cause for the adverse result it faced.  In view of this conduct, it could not be said that the Respondents were denied procedural fairness to properly and adequately put its case against the misappropriation claim, in circumstances where the ‘deficient’ particulars in Simple Investments’ APOC were a product of the Respondents’ own doing.^[63]  Similarly, the arbitrator’s decision to draw the adverse inference was one he was well entitled to do, putting aside the validity or correctness of that decision, on the evidence before him—the Respondents at all times being able to lead evidence on the misappropriation quantum, and the adverse inference did not render the decision one which was procedurally unfair.

The draft award

74. Relevant also to the consideration of procedural fairness, Simple Investment says, is the arbitrator’s publication of his draft award, and the limited opportunity offered to the parties to make further submissions on the award and the appropriate orders.
75. The draft award was published on 7 March 2025.  Following which, the parties exchanged two rounds of written submissions and a set of competing proposed orders giving effect to the proposed award.  The Interim Award was published on 13 September 2025 following these submissions and proposed orders.  On its face, the publication of a draft form of award, and the arbitrator having afforded the parties an opportunity to make limited submissions on the draft, would indicate that procedural fairness has been afforded—arbitrators in general being under no obligation to provide a draft award and an opportunity to comment.  
76. The Respondents did avail themselves of this opportunity, and made written submissions indicating to the arbitrator that his position was wrong.  Nonetheless, the arbitrator made findings in his published Interim Award in substantially the same form as the draft, maintaining, inter alia, the misappropriation finding to the sum of $679,599.00.  For this reason, Simple Investments says the Respondents had ample opportunity to be heard on this matter, and that its grievance lies solely with the outcome of the decision.
77. During the hearing of this application, I enquired whether it was incumbent on the Respondents to have raised its objections in a more substantial manner, for instance, by seeking leave to reopen evidence.^[64]  Both parties made detailed oral submissions on this point—the Respondents drawing the Court’s attention to the limited scope of written submissions sought by the arbitrator, which included an express, stated position that pleadings and evidence would not be reopened,^[65] whilst Simple Investments contended that this stated position in the draft award was not decisive, and it was open to the Respondents to agitate that issue if necessary.^[66]  Limited further discussion took place as to what evidence, if any, the Respondents could have led in relation to an ‘unpleaded and unparticularised’ allegation on the case it was required to meet.  For the reasons which follow, this issue is not one which requires determination in view of the conclusions I have reached.  Nonetheless, to the extent it is desirable to clarify the ‘obligations’ imposed on a party to raise or agitate what it considers a denial of procedural fairness during the arbitral proceeding, I deal with those matters briefly below.  

Analysis

78. For the reasons which follow, each of the Respondents’ bases for resisting enforcement should fail, and I will make an order pursuant to s 35 of the Act to enforce the arbitrator’s Interim Award and Final Award as if the awards were a judgment or order of this Court.  For the sake of completeness, I am not convinced that the order to repay the misappropriation sum is contingent upon the arbitrator’s finding of dishonesty against Mr Marra in the preceding order.  Simple Investments’ decision not to enforce the award against Mr Marra therefore bears no detrimental effect on its ability to seek enforcement against the Respondents.^[67]  
79. Having detailed regard to the parties’ submissions, the limited evidence which may be permissibly considered by a court in determining an enforcement or set aside application, and the authorities on this issue, I am not satisfied that the Respondents have suffered any denial of procedural fairness constituting any basis or bases for this Court to refuse enforcement of the whole, or parts, of the arbitrator’s Interim Award and Final Award.  Each of the Respondents’ claims that it was denied a reasonable opportunity to present its case, and that the awards dealt with matters outside the terms of submission fail and, accordingly, the ‘contrary to public policy ground’, advanced not independently to the denial of procedural fairness argument, must also fail.
80. I arrive at this conclusion having been satisfied that the arbitrator’s award, as it pertains to the misappropriation claim, and the quantum of the claim, was within the ‘four corners’ of the parties’ arbitration, and that the Respondents had, on numerous occasions, the opportunity to produce evidence to refute the misappropriation claim at large, or the quantum thereof.  Its forensic decision not to do so, having regard to the specific pleaded allegation in Simple Investments’ APOC, and as subsequently advanced in its written submissions, empowered the arbitrator to render an award in respect of that claim.  That is not, however, to say that the arbitrator’s decision making process was not, at times, unusual.  Whilst his decisions vis‑à‑vis the parties’ list of issues, and the non‑taking of accounts, may fairly be described as atypical, it was not, in my view, injurious to the Respondents, and cannot be described as a denial of procedural fairness.  I turn to those matters in more detail below.^[68]

Within the four corners of the arbitration

81. As I have detailed above,^[69] Simple Investments squarely advanced a misappropriation claim by virtue of paragraph 54(f)(a) of its APOC:

Following the taking of accounts: any amounts found to have been misappropriated by the Respondent, Arram and/or Marra be repaid to the joint venture.

82. Its APOC also advanced allegations with respect to Mr Marra’s intermingling of joint venture funds which it said was the predicate of the misappropriation claim.^[70]
83. In those circumstances, I am satisfied that Simple Investments properly made its misappropriation claim squarely within the bounds of the arbitral proceeding, and that the arbitrator was entitled to make findings with respect to the claim.
84. I am reinforced in my view having regard to the totality of the circumstances upon which the claim was advanced,^[71] in particular, having regard to the witness statement of Mr Blitsas, which advanced directly and precisely, an allegation that Mr Marra had misappropriated joint venture funds for his personal benefit.^[72]  It is in light of this direct allegation, and Mr Marra’s failure to meaningfully contend with a matter of such serious gravity, instead responding only by means of non‑acceptance,^[73] that I do not accept the Respondents’ claims that Mr Marra was not afforded a fair opportunity to respond to the claims.  Mr Marra’s affidavit evidence in this application is, with respect, an attempt at revisionist history—perhaps, with the benefit of knowing the outcome of his and his legal team’s forensic decision not to advance any meaningful defence vis‑à‑vis the misappropriation claim, he may very well have sought to make altogether different forensic decisions.  That, of course, does not advance his argument that the Respondents were denied procedural fairness.
85. Relevant also to my assessment is the Respondents’ failure to provide discovery of documents in accordance with the arbitrator’s procedural order dated 27 April 2021.^[74]  In view of the necessary fact that Arram Developments and Mr Marra were, at all times, the only parties to the arbitral proceeding who had access to the documentary records which formed part of Simple Investments’ misappropriation claim, its failure to disclose those records, which may in fact have assisted its defence, provided the arbitrator with a basis for drawing the conclusions sought with respect both to the misappropriation claim, and the quantum of that claim.  Indeed, as detailed above,^[75] Simple Investments made extensive post‑hearing written submissions to the arbitrator that the quantum of the misappropriation claim must amount to $679,599.00. This was the sum paid from the Arram Developments bank account to an account in Mr Marra’s name.  Further, it was contended by Simple Investments that the Respondents’ failure to disclose any documents evincing a legitimate reason for those transactions must raise the strong inference that they were illegitimate, hence a misappropriation of the joint venture monies.  The arbitrator accepted that submission, and drew the inferences sought against Arram Developments.^[76]  On this basis, the arbitrator quantified the misappropriation claim at $679,599.00.  Putting aside whether that decision was correct, the merits of the arbitrator’s decision being outside the Court’s jurisdiction in this application, it was a decision which he was entitled to make in all the circumstances.  
86. The Respondents were, at all times after the APOC was drawn, aware of the misappropriation allegation.  They elected not to lead any meaningful evidence in denial of this allegation, in the face of unopposed evidence from Simple Investments’ witness that Mr Marra had misappropriated the joint venture’s funds, and withheld ‘critical documents’ from the arbitral proceeding which could have exculpated it from this claim.   In those circumstances, I am not satisfied that the Respondents have satisfied their burden of establishing either the denial of procedural fairness or contrary to public policy grounds for refusing to enforce the arbitrator’s awards.^[77]
87. In arriving at this conclusion, it is relevant to note the authoritative principle in TCL Air Conditioner that a competent Court may only refuse enforcement where the aggrieved party is able to establish the existence of a ‘real unfairness’ or ‘real practical injustice’.^[78]  In Corporacion Transnacional de Inversiones SA de CV v STET International SpA, the Ontario Superior Court of Justice cautioned against the use of the Court’s curial powers to protect parties from their own forensic mistakes, emphasising that those powers should only be triggered to protect a party from ‘egregious and injudicious conduct’ by the arbitral tribunal.^[79]  Most recently, in CNG v G, Justice Mimmie Chan, Judge in Charge of the Construction and Arbitration List of the Hong Kong Court of First Instance, provided an important reminder of the Court’s curial role with respect to enforcement and set aside applications:^[80]

Lest it should be unclear, parties should be reminded that arbitration is a consensual process of final dispute resolution to which they voluntarily agree, with whatever inherent defects and risks there may be, and there are only limited avenues of appeal and challenge to the award. The limited recourse parties have under the Arbitration Ordinance is not intended to afford them with an opportunity to ask the Court after the event to go through the award with a fine‑tooth comb, to look for defects and imperfections under the guise that the tribunal had failed to act in accordance with its remit or the agreed procedure.

…

Article 34(2)(a)(ii) of the Model Law permits the Court to set aside an award if a party was ‘unable to present’ its case. What the courts seek to enforce and protect is a standard of due process which can satisfy basic minimum requirements and are generally accepted as essential to a fair hearing.

88. In all the circumstances, I am not satisfied that the Respondents were denied procedural fairness or that enforcement of the arbitral award would be contrary to public policy.  Even if the Respondents were able to establish a deficiency in the arbitral process, I am not persuaded that it rises to the level described in TCL Air Conditioner to enliven the Court’s curial powers to refuse enforcement.^[81]  Indeed, I am satisfied that, on the matters raised by the parties, any purported deficiencies in the arbitral process, which, for the sake of clarity, I have not found exists in the present application, could only be regarded as having arisen from the Respondents’ own actions.  In the words of the learned judge in Corporacion Transnacional de Inversiones SA de CV v STET International SpA, enforcement should not be refused on the basis of the Respondents’ ‘own failures or strategic choices’.^[82]

List of issues and non-taking of profits

89. Having regard to my findings above, it is not strictly necessary to embark on a detailed analysis on the arbitrator’s decision to determine a matter outside the parties’ list of issues, and his decision not to order an account of profits, but nonetheless make the quantum order sought by Simple Investments.  Nonetheless, given the considerable time which the parties spent addressing each of these issues, and the desirability of clarifying the existing jurisprudence on these issues, it is useful that I make a number of brief observations.  
90. With respect to the first matter, I am not satisfied that the mere fact that the misappropriation claim falls outside the parties’ list of issues warrants a finding that it exceeds the bounds of the terms of submission to the arbitration, and therefore falls foul of s 36(1)(a)(iii) of the Act.  To that end, I make a number of observations.  
91. Firstly, the authorities to which counsel for the Respondents helpfully drew the Court’s attention to indicate that, in determining the scope of the submission for the purpose of s 36(1)(a)(iii) (and art 36(1)(a)(iii) of the Model Law), regard is to be had to the parties’ pleadings, list of issues, submissions and evidence adduced.^[83]  However, each of these sources should not be treated as discrete or independent, and the ‘overriding consideration’ is whether the disputed matter was properly pleaded.^[84]  As a necessary consequence of my preceding findings that the misappropriation claim was squarely addressed by the Respondents’ APOC,^[85] and the plain words of paragraph 54(f)(a) providing for ‘any amounts found to have been misappropriated … to be repaid’, the matter was one which clearly formed part of Simple Investments’ pleaded case.  That is abundantly so having regard to the surrounding circumstances of the way in which the claim was prosecuted in the arbitral proceeding.^[86]
92. Secondly, Simple Investments did not apparently consider itself bound by the list of issues, and made submissions to the arbitrator following the release of the draft award to that effect.^[87]  The arbitrator also took that same view, and expressly stated that he was not bound by the list of issues.^[88]  In those circumstances, notwithstanding the unusual course in ordering a list of issues and subsequently determining to abandon or otherwise neglect those issues, the arbitrator was entitled to determine the misappropriation claim which fell within Simple Investments’ APOC but outside the parties’ list of issues.   Had the arbitrator expressly indicated the inverse, that he would only determine the matters within the list of issues, notwithstanding that matters which were otherwise pleaded by the parties did not fall within that list, that may very well have led to a denial of procedural fairness—though that clearly did not arise in the present circumstance.
93. Finally, it is well recognised that a list of issues is not the figurative ‘be all end all’ in arbitral proceedings.^[89]  It may very well serve as a useful tool in confining the issues and providing the arbitral tribunal with a number of convenient questions to guide the drafting of the arbitral award, and to ensure that important issues are canvassed.  However, that does not mean that every question within the list of issues must be answered, and every issue outside it be neglected. In CNG v G, Justice Mimmie Chan said:^[90]

[S]ave as expressly agreed, a list of issues is not an exam paper, and I would add that it is not an exam paper with compulsory questions for the tribunal to answer them all.

Adopting her Honour’s analogy, the antithesis too must hold true—just as the list of issues is not an exam paper, the tribunal is entitled to consider matters within the parties’ pleaded or written case and outside the list of issues, unless the parties express, in clear terms, otherwise.

94. I turn now to the second matter, being the arbitrator’s decision to render a quantum finding without ordering a taking of accounts.  For the reasons indicated above,^[91] the arbitrator was entitled to do so, having been persuaded by Simple Investments’ submissions that he should find that the entire quantum of dissipated monies constituted the misappropriated funds in the absence of contra‑evidence from the Respondents.  Whilst it is, with respect, an atypical decision, a claim for an account of profits ordinarily requiring a taking of accounts prior to a quantum finding, at its highest, the claim can only be that the arbitrator erred in applying the law to his decision, a result which does not enliven the Court’s power to refuse enforcement.
95. As I have indicated in the preceding reasons, the arbitrator’s failure to order an account engendered no procedural unfairness in circumstances where Arram Developments and Mr Marra created their own misfortune.^[92]  It is not sufficient for them to now say that had they known that the arbitrator would render a quantum finding to the whole dissipated sum, they would have utilised its opportunity to lead contra‑evidence on the question of quantum.
96. In this regard, at risk of belabouring the point, it is important to again reiterate the Court’s limited curial function in enforcement proceedings.  It is not the Court’s role to step in each time it perceives some ‘defect’ in the tribunal’s decision, and supplant that decision with one of its own.  Just as the parties must honour the consensual process of arbitration to which they voluntarily agreed, so too must a Court respect the parties’ agreement and, by extension, the arbitral tribunal’s autonomy, its fact finding process, and its conclusions on fact and law.  In the same way that a trial court is best placed to manage its proceedings, appropriately weigh the evidence and submissions before it, and draw its own conclusions, the longstanding policy of minimal curial intervention contemplated by the Model Law requires the courts show appropriate deference to the tribunal’s decision‑making process.

The draft award

97. I turn finally to the arbitrator’s publication of the draft award and the effect, if any, it had on the Respondents’ claims for denial of procedural fairness.  I note that consideration of this aspect of the arbitral proceedings is not strictly necessary having regard to my findings above.^[93]
98. The starting point in any enforcement or set aside proceeding is to ask whether the ‘aggrieved party’ had an opportunity to, and did in fact, raise the matters it now says constitute a denial of procedural fairness before the arbitral tribunal.  In circumstances where that party had knowledge of the fundamental matters it considered placed the arbitral tribunal afoul of the Model Law, and elected not to raise those grievances with the arbitral tribunal with a view to correcting them, the Court should be weary of exercising its curial powers to set aside or refuse enforcement.  To that end, it is useful to recite in full the remarks of the Singaporean Court of Appeal in China Machine New Energy Corp v Jaguar Energy Guatemala LLC:^[94]

An assertion that the tribunal has acted in material breach of natural justice is a very serious charge, not just for the imputation that such an allegation makes as to the bona fides and professionalism of the tribunal, but also for the grave consequence it might have for the validity of the award. For this reason, there can be no room for equivocality in such matters. An aggrieved party cannot complain after the fact that its hopes for a fair trial had been irretrievably dashed by the acts of the tribunal, and yet conduct itself before that tribunal ‘in real time’ on the footing that it remains content to proceed with the arbitration and obtain an award, only to then challenge it after realising that the award has been made against it. In our judgment, such tactics simply cannot be countenanced.

…

In our judgment, there is a principle to be drawn from this and it is this: if a party intends to contend that there has been a fatal failure in the process of the arbitration, then there must be fair intimation to the tribunal that the complaining party intends to take that point at the appropriate time if the tribunal insists on proceeding. This would ordinarily require that the complaining party, at the very least, seek to suspend the proceedings until the breach has been satisfactorily remedied (if indeed the breach is capable of remedy) so that the tribunal and the non‑complaining party has the opportunity to consider the position. This must be so because if indeed there has been such a fatal failure against a party, then it cannot simply ‘reserve’ its position until after the award and if the result turns out to be palatable to it, not pursue the point, or if it were otherwise to then take the point. After all, the requirement of a fair process avails both parties in the arbitration and to countenance such hedging would be fundamentally unfair to the process itself, to the tribunal and to the other party. In the final analysis, it is a contradiction in terms for a party to claim, as CMNC now does, that the proceedings had been irretrievably tainted by a breach of natural justice, when at the material time it presented itself as a party ready, able and willing to carry on to the award. If a party chooses to carry on in such circumstances, it does so at its own peril. The courts must not allow parties to hedge against an adverse result in the arbitration in this way.

To any extent the decision in China Machine New Energy Corp v Jaguar Energy Guatemala LLC has not been applied by Australian courts, I would endorse the Singaporean Court of Appeal’s remarks in their entirety.

99. As the Respondents rightly contend, that is not what had taken place in the arbitral proceeding.   The Respondents had made numerous attempts to alert the arbitrator of what they considered was a breach of procedural fairness following the publication of the draft award, including by expressing its view that, if the award was made in the proposed form, it would be liable to being set aside.^[95]
100. Its central position, adopting the Singaporean Court of Appeal decision of CAJ v CAI,^[96] is that the correct enquiry for this Court is not what more the Respondents could have done in the face of the purported denial of procedural fairness but, rather, what the party advancing the claim, Simple Investments, could have done to make clearer its claim, and failed to do:^[97]

The correct inquiry was not what the respondent could or should have done when it was confronted with the unpleaded EOT Defence. In our view, the correct inquiry was what the appellants should have done if they wanted to advance the EOT Defence in the Arbitration despite not having pleaded it beforehand. Clearly, as alluded to above, the appellants should have applied to amend their defence. For reasons best known to the appellants, this was not done. Until that was done, it would be premature for the respondent to seek directions from the Tribunal as regards the unpleaded EOT Defence. That would be putting the cart before the horse, and it was disingenuous for the appellants to suggest otherwise. The respondent bore no such burden, as the EOT Defence remained unpleaded throughout the Arbitration.

…

Saddled with this unpleaded defence which had been belatedly raised by the appellants, the respondent did its best to meet the new defence by objecting to it and raising several threshold arguments. It would be manifestly unfair to treat the respondent’s reaction as equivalent to a fair opportunity to address the EOT Defence, or as an attempt to hedge its position.

101. I adopt the remarks of the court in CAJ v CAI, which are, in my view, highly persuasive.   However, the factual matrix of the application in CAJ v CAI concerned significantly different circumstances, namely that the purported claim was entirely unpleaded, and the parties were offered no opportunity to comment on and seek rectification of a draft award.  Accordingly, I am of the view that the principles in CAJ v CAI have limited operation in this proceeding given the distinct circumstances which the parties to this arbitral proceeding have faced.  
102. It is not necessary in this application for me to determine the precise scope of any obligation which rests on an aggrieved party in such circumstances to agitate its denial of procedural unfairness claim with the arbitral tribunal where it has sought to make that argument, and the arbitral tribunal has been thus resistant to hearing further argument on that issue.  I make only the remark that an aggrieved party which appears before the Court seeking to set aside or refuse enforcement of the award is armed with better prospects if it can demonstrate that it has done all it can to agitate the issue before the arbitral tribunal.  The requirement of fair process in the Model Law dictates such an approach.^[98]

Conclusion and orders

103. For the preceding reasons, the Respondents have failed on each of its grounds to refuse enforcement.  The ancillary matters raised by the Final Award as pertain to costs of the arbitration and interest fall away.
104. I will make the following orders sought by Simple Investments by its Amended Originating Application to Enforce Award:^[99]
     a) Pursuant to the Final Order made by the Sole Arbitrator, Mr. Stephen Wallace White, on 12 January 2026, the First Respondent and Second Respondent be directed to jointly and severally pay the Applicant’s costs, which have been fixed in the sum of $560,200.30;
     b) Pursuant to Order 3 of the Interim Orders made by the Sole Arbitrator, Mr. Stephen Wallace White, on 13 September 2025, the Second Respondent be directed to immediately repay to the joint venture (being the joint venture between the Applicant and the First Respondent) the misappropriated sum of $679,599.00.  The repayment of the sum of $679,599.00 to be made into the trust account of the Applicant’s solicitors, to be held jointly for the Applicant and the First Respondent.
     c) Pursuant to Order 4 of the Interim Orders made by the Sole Arbitrator, Mr. Stephen Wallace White, on 13 September 2025, the Second Respondent be directed to perform the Joint Venture Agreement by:
     1. Providing the Applicant with access to the books and records of the Joint Venture;
     2. Providing the Applicant with full reports on the business of the Joint Venture, including, without limitation, itemised details of income, outgoings, charges, and expenses;
     3. Making available for the Applicant’s inspection up‑to‑date records relating to the Joint Venture and the business thereof, including, without limitation, details of all income, outgoings, charges, and expense;
     4. Causing the books of account, registers and other records of each of the (i) joint venture; and (ii) the Applicant, insofar as the same relates to the Joint Venture and the joint venture business, to be audited by independent auditors to be agreed by the parties in accordance with clause 3.3(d) of the Joint Venture Agreement.
        d) Pursuant to Order 5 of the Interim Orders made by the Sole Arbitrator, Mr. Stephen Wallace White, on 13 September 2025 that the net proceeds of the Joint Venture be distributed equally in accordance with clauses 2.9 and 9.2 of the Joint Venture Agreement as amended and pursuant to which, the First and Second Respondents shall forthwith pay to the Applicant the sum of $289,244.
        e) Pursuant to Order 6 of the Interim Orders made by the Sole Arbitrator, Mr. Stephen Wallace White, on 13 September 2025, the First and Second Respondent shall forthwith pay interest on the award pursuant to statute to the Applicant.
105. I will reserve the question of costs and hear the parties on this issue if necessary.

—

^[1]              Respondents’ Written Outline of Submissions dated 25 June 2026, [2] (Respondents’ Written Submissions).

^[2]              Second Katsimadakos Affidavit, 26–7.

^[3]              Second Katsimadakos Affidavit, 27.

^[4]              First Katsimadakos Affidavit, 8.

^[5]              First Katsimadakos Affidavit, 8–9.

^[6]              First Katsimadakos Affidavit, 166.

^[7]              Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company (2021) 290 FCR 298, 305 [19] (Stewart J, with whom Allsop CJ and Middleton J agreed).  Noting that whilst this decision concerned the application of the International Arbitration Act 1974 (Cth), those same principles apply to the Act.

^[8]              (2014) 232 FCR 361.

^[9]              TCL Air Conditioner (2014) 232 FCR 361, 393[109].

^[10]             TCL Air Conditioner (2014) 232 FCR 361, 376–7 [55].

^[11]             TCL Air Conditioner (2014) 232 FCR 361, 395 [113].

^[12]             TCL Air Conditioner (2014) 232 FCR 361, 395 [113].

^[13]             Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326, [20]–[24] (Croft J); Indian Farmers Fertiliser Cooperative Ltd v Gutnick (2015) 304 FLR 199, 206–9 [17]–[18], [20]–[24] (Croft J); see also Subway Systems Australia Pty Ltd v Ireland (2014) 46 VR 49, 57 [24]–[27] (Maxwell P).

^[14]             Respondent’s Written Submissions, [2].

^[15]             Grand Pacific Holdings Ltd v Pacific China Holdings Ltd (in liq) (No 1) [2012] 4 HKLRD 1, 35 [95] (Vice President Tang, Kwan and Fok JJA).

^[16]             Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326, [28].

^[17]             Full Joy Foods Pty Ltd v Australian Dairy Park Pty Ltd [2020] VSC 672, [70] (Niall JA); Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2018] QCA 39, [83] (Fraser JA).

^[18]             (1999) 45 OR (3d) 183, [73].

^[19]             [2008] 3 SLR(R) 871, 892 [55] (Chan J).

^[20]             [2024] HKCFI 575, [68] (Chan J).

^[21]             See generally, C Croft, D Stamboulakis, M Warren, International and Australian Commercial Arbitration (LexisNexis, 2022), [11.40]–[11.44].

^[22]             Colin Joss and Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 735, [46] (Hammerschlag J).

^[23]             PT Asuransi Jasa Indoensia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597, [59] (Chan CJ, Leong JA and Ang J).

^[24]             See, eg, Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) (2012) 201 FCR 535, 555 [90] (Foster J).

^[25]             See above, [24].

^[26]             Robotunits Pty Ltd v Mennel (2015) 49 VR 323, [14] (Croft J).

^[27]             T73.19–27.

^[28]             [2016] VSC 326, [26].

^[29]             Respondent’s Written Submissions, [5].

^[30]             Second Merlo Affidavit, 8–20.

^[31]             First Merlo Affidavit, 17.

^[32]             Respondent’s Written Submissions, [8].

^[33]             See above, [41].

^[34]             Second Merlo Affidavit, 19 (APOC, [54(f)(a)]).

^[35]             First Katsimadakos Affidavit, 113 (Interim Award, [20.1]–[20.2]); First Merlo Affidavit, 674 (Draft Interim Award, [20.1]–[20.2]).

^[36]             First Merlo Affidavit, 18.

^[37]             First Merlo Affidavit, 733–4.

^[38]             Respondent’s Written Submissions, [14(b)].

^[39]             First Merlo Affidavit, 16–7.

^[40]             Respondents’ Written Submissions, [14(c)].

^[41]             Respondents’ Written Submissions, [14(d)].  

^[42]             Respondents’ Written Submissions, [14(e)].

^[43]             Respondents’ Written Submissions, [14(f)].

^[44]             Respondents’ Written Submissions, [30].

^[45]             See, eg, TCL Air Conditioner (2014) 232 FCR 361, 393 [109].  See also AKN v ALC [2015] SGCA 18, [37]–‍[38] (Menon CJ, Leong JA and Chong J).

^[46]             See CDM v CDP [2021] 2 SLR 25, [18].

^[47]             DGE v DGF [2024] SGHC 107, [115] (Tan JC).

^[48]             See above, [46]–[52].

^[49]             Second Merlo Affidavit, 19 (APOC, [54(f)(a)]).

^[50]             Second Merlo Affidavit, 18 (APOC, [50]–[53]) (emphasis in original).

^[51]             Second Merlo Affidavit, 223 (Witness Statement of Mr Blitsas dated 29 October 2023, [65]).

^[52]             Mr Blitsas’ witness statement is dated 29 October 2023, and preceded Mr Marra’s witness statement, dated 5 August 2024 by approximately eight months.

^[53]             Exhibit to the Second Merlo Affidavit, 341 (Witness Statement of Carlo Marra dated 5 August 2024, [93]) (emphasis added).

^[54]             Simple Investments’ Written Outline of Reply Submissions dated 15 May 2026, [12]–[16] (Simple Investments’ Reply Submissions).

^[55]             Second Merlo Affidavit, 47.  

^[56]             The arbitrator’s procedural order required discovery be completed by 17 May 2021.  The substantive hearing did not occur until December 2024.  

^[57]             The arbitrator’s Final Award accepted Simple Investments’ submission that: ‘The Respondents had at all times complete control of the records of the joint venture, or any other record held by any of the Respondents that would affect the proper assessment and reconciliation of the joint venture and refused to discover or produce them.’: See First Katsimadakos Affidavit, 169, 179 (Final Award, [3.7], [7.1]).

^[58]             Second Merlo Affidavit, 60 [19].

^[59]             Simple Investments’ Reply Submissions, [13].

^[60]             First Katsimadakos Affidavit, 40 (Interim Award, [5.136]–[5.138]) (citations omitted).  

^[61]             First Katsimadakos Affidavit, 111 (Interim Award, [14.1]–[14.5]) (emphasis added).

^[62]             First Katsimadakos Affidavit, 156 (Interim Award, [30.2]–[30.3]).

^[63]             Simple Investments’ Reply Submissions, [12]–[16].

^[64]             T21.28–22.19; 23.7–13; 30.22–31.15.

^[65]             Second Merlo Affidavit, 917 (Draft Award dated 7 March 2025, [1.7]).  

^[66]             T118.8–23.

^[67]             See Simple Investments’ Reply Submissions, [34]–[38].

^[68]             See below, [89]–[96].

^[69]             See above, [59].

^[70]             See above, [60].

^[71]             Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH [2008] 3 SLR(R) 871, 892 [55] (Chan J).

^[72]             See above, [62].

^[73]             See above, [63].

^[74]             Second Merlo Affidavit, 47.  

^[75]             See above, [70].

^[76]             First Katsimadakos Affidavit, 111 (Interim Award, [14.1]–[14.5]), 156 (Interim Award, [30.2]–[30.3]).

^[77]             Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company (2021) 290 FCR 298, 305 [19] (Stewart J, with whom Allsop CJ and Middleton J agreed).

^[78]             TCL Air Conditioner (2014) 232 FCR 361, 394–5[111]–[113] (Allsop CJ, Middleton and Foster JJ).

^[79]             (1999) 45 OR (3d) 183, [73].

^[80]             [2024] HKCFI 575, [1], [68].

^[81]             TCL Air Conditioner (2014) 232 FCR 361, 394–5[111]–[113] (Allsop CJ, Middleton and Foster JJ).

^[82]             (1999) 45 OR (3d) 183, [73].

^[83]             CDM v CDP [2021] 2 SLR 25, [18] (Chong and Prakash JJCA, Tin SJ).

^[84]             CAJ v CAI [2021] 1 SLR 505, [50] (Chong, Prakash and Leong JJCA).

^[85]             See above, [78]–[84].

^[86]             See above, [84]–[86].

^[87]             First Merlo Affidavit, 734 [32]–[34].

^[88]             T73.4–10.

^[89]             See CAJ v CAI [2021] 1 SLR 505, [50] (Chong, Prakash and Leong JJCA).

^[90]             CNG v G [2024] HKCFI 575, [26].

^[91]             See above, [80], [84]–[85].

^[92]             See above, [85]–[86].

^[93]             See above, [78]–[88].

^[94]             [2020] SGCA 12, [168], [170] (Menon CJ, Kwang JA and Loh J).

^[95]             See, eg, Second Merlo Affidavit, 744 [19]: ‘If any such order is made, the making of such an order would amount to a breach of the requirement to provide the Respondents with procedural fairness, and the Award would be liable to be set aside. This is because proposed order 3 deals with matters that were not in issue in the arbitration.’

^[96]             [2021] 1 SLR 505, (Leong, Prakash and Chong JJCA).

^[97]             [2021] 1 SLR 505, [61], [65] (Leong, Prakash and Chong JJCA) (emphasis in original).

^[98]             China Machine New Energy Corp v Jaguar Energy Guatemala LLC [2020] SGCA 12, [170] (Menon CJ, Kwang JA and Loh J).

^[99]             Simple Investments’ Amended Originating Application to Enforce Award, 26 February 2026.