Mi v Li [2018] ACTCA 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

CASE TITLE: Mi v Li

CITATATION: [2018] ACTCA 66

HEARING DATE: 8 August 2018

DECISION DATE: 14 December 2018

BEFORE: Elkaim, Loukas-Karlsson and Charlesworth JJ

DECISION: 
1. The appeal against the orders of McWilliam AsJ is dismissed.
2. The appellant is to pay the respondent’s costs of this appeal.

CATCHWORDS: APPEAL – ARBITRATION – Appeal against primary judgment – appeal against enforcement of Interim Arbitral Award – whether the primary judge erred by mischaracterising appellant’s case – whether the primary judge erred by finding that Anshun estoppel applied to the appellant – whether the primary judge erred in her application of rule 3254 of the Court Procedures Rules 2006 (ACT) – appeal dismissed

THE COURT

Introduction

  1. This is an appeal from a decision of McWilliam AsJ (the primary judge) arising out of a dispute surrounding a construction contract. On 30 October 2017, the primary judge ordered that the Interim Arbitral Award given in Arbitration proceedings with the designation IAMA # 5073 delivered on 20 August 2016 be registered as a judgment of the Supreme Court in favour of the plaintiff in the sum of $217,454.34 including interest, with the defendant to pay the plaintiff’s costs.
  2. The appellant appeals from these orders on the following grounds:

Ground 1:  The trial judge erred by misconstruing, misunderstanding, or mischaracterising the appellant’s case or submission in relation to the identity of the counterparty to any construction contract or arbitration agreement;

Ground 2:  The trial judge erred in finding that the appellant was estopped from arguing that the arbitrator lacked jurisdiction to make an arbitral award as between the appellant and the respondent; and

Ground 3:  The trial judge erred in finding that rule 3254 of the Court Procedures Rules 2006 (ACT) (the Rules) imposed a relevant constraint on the claims to be made by the appellant.

Relevant Legislation

  1. The applicable legislation is the Commercial Arbitration Act 1986 (ACT) (the Act). On 1 July 2017, the Commercial Arbitration Act 2017 (ACT) (the 2017 Act) commenced. Pursuant to the transitional provisions in Part 20 of the 2017 Act, commercial arbitrations commenced (and in this case concluded) before 1 July 2017 continue to be conducted in accordance with the Act.
  2. The relevant starting point is s 33 of the Act. That section provides as follows:

33          Enforcement of award

An award made under an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect, and where leave is so given, judgment may be entered in terms of the award.

  1. Rule 3260 of the Rules relevantly provides as follows:

3260        Commercial arbitration – application to enforce arbitral award

An application under the Commercial Arbitration Act, section 35 (Recognition and enforcement) to enforce an arbitral award—

(a) must be supported by an affidavit that states—

(i) the extent to which the award has not been complied with at the date the application is made; and

(ii) the usual, or last-known home or business address of the person against whom it is sought to enforce the award or, if the person is a corporation, its last-known registered office; and

(b) may be made without giving notice to anyone.

  1. Prior to the commencement of the Commercial Arbitration Act 2017 (ACT), r 3254 of the Rules provided as follows:

3254        Commercial arbitration—appeal under Commercial Arbitration Act, s 38

(1)          An appeal to the Supreme Court mentioned in the Commercial Arbitration Act, section 38 (4) (a) (Judicial review of awards) must be started not later than 28 days after—

(a)   if, by agreement of the parties to the arbitration agreement, the award is made without including a statement of reasons—the day the statement of reasons is given to the appellant; or

(b)   in any other case – the day notice of the award is given to the appellant

(2)          An appeal to the Supreme Court mentioned in the Commercial Arbitration Act, section 38 (4) (b) must be started not later than 28 days after the day leave is given by the court.

  1. Section 48 of the Act provides as follows:

48           Extension of time

(1)          Subject to subsection (3), the court shall have power on the application of a party to an arbitration agreement or an arbitrator or umpire to extend the time appointed by or under this Act or fixed by the agreement or by an order under this section for doing any act or taking any proceeding in or in relation to an arbitration.

(2)           The court may make an order under this section although an application for the making of the order was not made until after the expiration of the time appointed or fixed for doing the act or taking the proceeding.

(3)           An order shall not be made under this section extending the time within which arbitration proceedings might be commenced unless—

(a)           the court is satisfied that in the circumstances of the case undue hardship would otherwise be caused; and

(b)           the making of the order would not contravene the provision of any Territory law limiting the time for the commencement of arbitration proceedings.

Background

  1. On 10 November 2011, the appellant (Mr Mi) entered into a contract for the construction of a single dwelling with an entity that gave its business name as, “Kai Design and Construction,” and its ABN as 55 759 669 879.
  2. In March 2013, Mr Mi purported to terminate the contract. In January 2014, Kai Design & Construction Pty Ltd (in liq), brought an arbitration claim against Mr Mi. Kai Design and Construction Pty Ltd did not exist when the contract was made.
  3. Ultimately, by further amended statement of claim dated 25 February 2015, the claim against Mr Mi was advanced only by the respondent (Mr Li) (and not also by Kai Design and Construction Pty Ltd) (in liq)). On 20 August 2016, Mr William Sullivan (the arbitrator) made an interim award in favour of Mr Li, requiring Mr Mi to pay $205,121.75 (the award).
  4. On 23 August 2016, Mr Mi (then self-represented) filed an originating application in the Supreme Court of the ACT, seeking to challenge the award. The challenge was unsuccessful. On 16 March 2017, Mossop J dismissed the proceeding: Mi v Li [2017] ACTSC 54. This decision will be discussed below.
  5. On 2 August 2017, Mr Li filed an originating application seeking (inter alia) an order that the award be registered as a judgment of the Court in favour of Mr Li.
  6. On 15 September 2017, Mr Mi filed an application in proceeding seeking (inter alia) a declaration that “[Mr Li] is not the contractual party of the [contract].”
  7. On 4 October 2017, Mr Li’s originating application, and Mr Mi’s application in proceeding, were heard together by the primary judge. Mr Li was represented by solicitors and counsel. Mr Mi continued to be self-represented.
  8. On 30 October 2017, the primary judge delivered judgment: Li v Mi (No 2) [2017] ACTSC 318. Her Honour’s orders included that the award be registered as a judgment in Mr Li’s favour. The current appeal is brought from that order. This appeal is brought under section 37E of the Supreme Court Act 1993 (ACT).

Mi v Li [2017] ACTSC 54

  1. As set out above, this matter came before Mossop J when Mr Mi initially sought to challenge the interim award made by the arbitrator. This followed the same arbitration which is the subject of these proceedings (IAMA # 5073) between Mr Mi and Mr Li, who was named as the first defendant in those proceedings.
  2. Mr Mi sought that the interim award be set aside under s 42 of the Commercial Arbitration Act 1986 (ACT) (the Act), or alternatively that leave to appeal be granted under s 38 of the Act. The grounds of that application asserted misconduct on the part of the arbitrator, that the arbitration or award had been improperly procured, and manifest error of law on the face of the award.
  3. The award was made on 20 August 2016, with reasons extending over 80 pages. Mossop J summarised the background of the arbitration at [8] as follows:

(a)          On 10 November 2011 Mr Li and Mr Mi entered into a contract for the construction of a residential dwelling at a block in Franklin.  The contract price was $500,000.

(b)          Mr Li and Mr Mi entered into an arbitration agreement under the Franklin contract.  The claimant in that arbitration was Kai Design and Construction Pty Ltd (the Company) which is a company controlled by Mr Li.  A further arbitration agreement was entered into on 25 September 2014 which included the company, Mr Li and Mr Mi.

(c)          Construction of the residence ceased before it was complete. Mr Mi contended that he terminated the contract.  Mr Li contended that the contract was repudiated by Mr Mi.  Mr Mi took over the work in early April 2013 and completed the work that would have been required under the contract.

(d)          Mr Li initially claimed damages and in the alternative made a quantum meruit claim.  In final submissions he elected to pursue the quantum meruit claim and not the claim for damages.

(e)          Mr Mi made a counter claim in which he claimed rectification and completion costs as well as other components of damages. 

(f)          The arbitration involved 13 days of hearing.

  1. Mossop J summarised the key issues which arose for the arbitrator’s determination at [9] as follows:

(a)          Had Mr Li assigned his contractual obligations to the Company?

(b)          Did the contract require that the installation of windows and glass doors would be part of the Frame and Truss Stage identified in the contract or had there been some statement or agreement that they would be, so as to give rise to an estoppel?

(c)          Was Mr Mi’s termination of the contract on 21 March 2013 valid?

(d)          Did Mr Li have a right to terminate the contract arising from the failure by Mr Mi to pay a stage payment under the contract? 

(e)          What was the appropriate award of damages or upon a quantum meruit claim?

  1. The arbitrator assessed Mr Li’s entitlement upon a quantum meruit, relying upon the expert evidence of Mr Shepheard who estimated the total construction costs of the works up until the point of termination. The breakdown of the total amount was summarised by Mossop J at [15] as follows:

Cost of construction (before markup and GST):  $196,044

10% markup for overheads and profit  $19,604

Subtotal$215,648

GST  $21,565

Amount to be deducted for incomplete work or defective work                -$9500

Total value of work completed at April 2013 including GST          $227,713

  1. The total amount of the award to Mr Li, accounting for payments already made, and interest owing, and offsetting $6,630.85 plus interest owing to Mr Li, was $205,121.75.
  2. Mossop J organised Mr Mi’s submissions in support of his claim into three groups of issues as follows at [18]:

(a)          the allegation that the arbitration had been improperly procured or the award had been improperly procured (s 42(1)(b));

(b)          the allegation that the arbitrator had misconducted the proceedings or had misconducted himself (s 42(1)(a));

(c)          the allegation that there was a manifest error of law on the face of the award (s 38(5)(b)(i)).

  1. In relation to the first group of issues, being whether the arbitration or interim award was improperly procured, Mossop J considered the issues raised by Mr Mi individually, and concluded that none of the issues raised by Mr Mi could prove a basis for concluding that the interim award had been improperly procured.
  2. In relation to the second group of issues, being any misconduct by the arbitrator, Mossop J pointed to the standard of misconduct required, as stated in Holland Stolte Pty Ltd v Murbay Pty Ltd (1991) 105 FLR 304 at 308 per Miles CJ, as follows:

I come to the conclusion that although the word “misconduct” in s 42(1)(a) does not have to be read ejusdem generis with the categories of behaviour enumerated in the definition clause s 4 of the Act, there must nevertheless be some real dereliction of duty on the part of the arbitrator before it can be said that the arbitrator has been guilty of misconduct, or that the arbitrator has misconducted the proceedings.

  1. Mossop J individually considered the factual issues raised by Mr Mi, and concluded that no matters raised demonstrated misconduct on the part of the arbitrator, or that the arbitrator misconducted the proceedings. Mossop J noted that Mr Mi bore the onus of establishing a denial of procedural fairness, and that he was not satisfied that this onus had been discharged.
  2. In relation to the third group of issues, being whether there had been a manifest error of law on the face of the award, Mossop J first identified the relevant test as at [83] as follows:

In Westport Insurance v Gordian Runoff (2011) 244 CLR 239 at [42] a majority of the High Court identified that the words “a manifest error of law on the face of the award” comprise a phrase which was to be read and understood as expressing the one idea. What is required was the existence of the error of law to be manifest on the face of the award including the reasons given by the arbitrator. If the error is manifest and the determination of the question could substantially affect the rights of at least one of the parties then there is the discretion to give leave under the statute. The majority judgment rejected the proposition that in order to be “manifest” what was required was an error of law of a particular character: [45].

  1. Mossop J noted that the manner in which the errors were identified by Mr Mi in written submissions made it difficult to identify the precise errors alleged. In Mi v Li [2017] ACTSC 54, Mossop J noted at [84]:

The written submissions on this point were limited even though asserting a large number of manifest errors of law. I will set them out in full:

17.          There are numerous errors of law in the Award. At least following issues could be identified from the Award: (a) Development approval obtained in November 2011; (b) identification of the builder under the Building Act 2004; (c) Purported assignment; (d) Estoppel to deny a purported assignment; (e) Carry out works shown on the Approved Plan; and (f) Verification of Survey Reports and Termite Certificate during stages; (g) Steel frames are not included in frame and truss stage; (h) Strap-down or tie-down are not included in frame and truss stage and they are minor; (i) Fidelity Fund are not required to be provided by the builder and can be provided by the owner; (j) Waiver of Ms White’s email in November 2014; (k) Performing in proper and skilful manner; (l) Time frame for the construction period; (m) Claim for damage for delay with a $0/week liquidated damages term in the contract; (n)Quantum meruit claim from a party in default; (o) Profit and costs for the Franklin Project with admission of losses by the claimant; (p) Progress claim by Mr Li without issuing invoice as an individual; (q) Who perform the work? (r) Interest calculation based on an estimated figure from an “expert” report and not from Mr Li’s progress payment claim; and (s) Admissibility of filing a reply and expert report at a very late stage; (t) fraud.

  1. No particular part of the award was identified as involving a manifest error of law. Mossop J concluded that having read the award and taken into account the written and oral submissions, no manifest error of law was apparent and as such, was not satisfied that leave under s 38 should be granted.
  2. In conclusion, Mossop J noted that the submissions made by Mr Mi sought to challenge a combination of questions of fact and law. Mr Mi had sought to characterise these contentions as falling within the scope of ss 38, 42, and 44, however Mossop J found that the challenges did not fall within the limited scope of those permitted grounds of challenge. As such, Mossop J made the following conclusions at [86]:

a)           the interim award should not be set aside;

b)           leave to appeal under s 38 should be refused;

c)           the arbitrator should not be removed;

d)           the arbitration should not be terminated and the dispute should not be removed into the Supreme Court.

  1. Mossop J dismissed the proceedings. There has been no appeal from this decision.  

Li v Mi (No. 2) [2017] ACTSC 318

  1. Mr Li sought to register the interim arbitral award (IAMA # 5073). Under s 33 of the Act, Mr Li made an application for the enforcement of the Interim Arbitral Award given in arbitration proceedings and delivered on 20 August 2016. As set out above, this matter came before the primary judge.
  2. Rule 3260(1)(a) of the Rules stipulates the procedural requirements in relation to such an application. There are two requirements, firstly, an affidavit supporting the application that states the extent to which the award has not been complied with at the date the application is made, and secondly, the usual or last-known home or business address of the person against whom enforcement is sought.
  3. At [4], the primary judge notes that Mr Mi resisted the application for enforcement on the basis that Mr Li was not the contractual party to the agreement. Mr Mi filed an application seeking a declaration, in addition to making five additional arguments set out by the primary judge at [5] as follows:

a)     The Award was an interim award, has not been finalised and is not a final order.

b)     There was a Calderbank offer made on 15 March 2015, which offered a sum greater than the Award.

c)     Registration of the Award cannot be granted unless the Court is fully satisfied that the party making the originating application is the right party.

d)     The Award does not specify who is the entity to receive payment.

e)     The Award is the result of fraud, misrepresentation, misconduct and concealment and must be set aside.

  1. In relation to Mr Mi’s claim, the primary judge at [17] cited the decision of Rolfe J in Cockatoo Dockyard Pty Ltd v Commonwealth of Australia (No 3) (1994) 35 NSWLR 689 at [694] as follows:

In my opinion s 33 of the Act does not provide another method whereby a party may call in question the award of an arbitrator and, although perhaps under another guise, provide the Court with a power to reverse what the arbitrator has done.

  1. The primary judge found that because Mr Li had complied with the requirements of r 3260, the Court was empowered to make the enforcement orders sought by Mr Li.
  1. The primary judge further found that none of the defendant’s arguments had any merit for the following reasons.
  2. First, her Honour found that Mr Mi’s right of appeal under the Act had already been invoked and ventilated in the proceedings and resulting judgment of Mi v Li [2017] ACTSC 54. As such, her Honour found that this was plainly a case where Anshun estoppel applied: see generally Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597-603 per Gibbs CJ, Mason and Aickin JJ (Anshun). This doctrine prevents a party to litigation raising issues after judgment has been given which was or was available to be raised in the first proceedings. Her Honour found that the doctrine applied to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time: Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 (Henderson) per Wigram V-C at 115, cited in Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126 per Refshauge ACJ at [270].
  3. Her Honour found that there was no reason why legal arguments about the nature of the parties to the arbitration agreement, the nature of the award or any improper conduct by the plaintiff could not have been agitated in the previous proceedings.
  4. Second, her Honour found that on a fair reading of the decision of Mossop J, the key issues sought to be raised by Mr Mi have now been ventilated and determined without any error having been found. Her Honour noted that Mossop J had considered arguments relating to the arbitrator’s treatment of Mr Mi’s submissions on this point. As such, her Honour found that Mr Mi faced a factual finding against assignment by the arbitrator, for which there plainly was evidence, and the finding by Mossop J that there had been no error in the reasoning process in the terms complained of by Mr Mi. Her Honour found that Mr Mi’s submissions in the primary proceedings amounted to no more than re-agitating an issue that has been already been determined.
  5. Her Honour found that as to fraud, misrepresentation, misconduct and concealment, those arguments had already been dealt with by Mossop J, and as such, an issue estoppel arose. Her Honour found at [33]:

To the extent that the arguments before this Court traverse beyond the findings made, such arguments would nevertheless be covered by my first finding that the defendant is estopped from bringing them in accordance with the principles articulated in Anshun.

  1. Third, her Honour found that any separate judicial review proceedings were out of time, given that more than a year had at that time passed since the award was delivered, with the reasons for the award also having been delivered contemporaneously. Her Honour found that this was well beyond the 28-day time limit stipulated in r 3254 of the Rules. Her Honour was not satisfied in the circumstances of the case, that any undue hardship would arise, which would empower the court to extend time under s 48(3) of the Act.
  2. Her Honour concluded that Mr Mi did not have the right under the Act to bring the application filed 15 September 2017, as the summary procedure cannot be used as a ‘back door’ procedure to enable a further challenge to the award. Her Honour therefore concluded that the award (IAMA # 5073) be registered as a judgment.

Submissions of the Appellant

The Notice of Competency

  1. A notice of competency was lodged by the respondent to this appeal. A number of grounds were relied on including relevantly that the notice of appeal discloses no error of law.
  2. The appellant submitted that Mr Li’s notice of competency proceeds on a misunderstanding of the nature of an appeal to this Court.
  3. An appeal under section 37E of the Supreme Court Act 1933 (ACT) is an appeal by way of rehearing, not an appeal limited to errors of law, or a question of law: Huen v Hyland [2004] ACTCA 5 at [54] and Australian Capital Territory v Crowley (2012) 7 ACTLR 142 at 146-147.
  4. An appeal under section 37E is by way of rehearing, and therefore a notice of appeal need only set out “some legal, factual or discretionary error”: see QA v Chief Psychiatristof the ACT [2018] ACTCA 10 at [36].
  5. Objections to competency are about jurisdiction, not the prospects of success of an appeal: see Davey v Herbst, Herbst and Bray (No. 2) [2012] ACTCA 19 at [99]. In short, an appeal is incompetent if it cannot be brought.
  6. If an appeal seeks to raise a point that is Anshun-estopped, the appeal may fail, though it cannot be said the appeal is not competent. This is an accepted, orthodox appeal point: see Gibbs & McAllion Lloyd Pty Ltd v Kinna [1998] VSCA 52; (1999) 2 VR 19.
  7. Accordingly, we find the appeal to be competent.

Ground 1: Misunderstanding of Mi’s Claim

  1. The appellant dealt with this ground in three parts: first, what was determined by the arbitrator; second, Mr Mi’s articulation of his claim before the primary judge; third, Mr Li’s mischaracterisation of Mr Mi’s claim; and, the primary judge’s error.

Part one: What was determined by the arbitrator

  1. The appellant submitted that when the arbitral claim was brought in early 2014, the sole claimant was Kai Design and Construction Pty Ltd. Mr Mi objected to the jurisdiction of the arbitrator on the basis that Kai Design and Construction Pty Ltd could not have been the counterparty to the contract. That was so because the contract was dated 10 November 2011 and Kai Design and Construction Pty Ltd was not registered until 17 April 2012.
  2. Mr Li’s then-solicitor wrote a letter to Mr Mi dated 18 March 2014. That letter stated as follows:

On 10 November 2012 you entered into a Master Builders’ Association ACT Home Building contract (‘contract’) with Zheng Kai Li.

We advise that on 17 April 2012 all interests of the construction business operated by Mr Li under the name Kai Design and Construction were assigned to Kai Design and Construction Pty Ltd, including Mr Li’s rights and obligations under the contract.

  1. The appellant submitted that there was no basis for that assertion. No evidence was ever put before the arbitrator, or any Court, to support it. Mr Li later resiled from it and denied the effectiveness of the assignment for which Kai Design and Construction Pty Ltd had contended.
  2. The issue was further confused by the fact that, when Mr Li commenced the arbitral claim, he lodged with the arbitrator a copy of the contract that had been altered: it bore a different ABN to the ABN that was actually written in the contract when it was made. Mr Li sought to explain this alteration in an affidavit made 23 April 2014:

In order to obtain the insurance in the name of the KDC Pty Ltd, the MBA required a copy of the contract entered into by KDC Pty Ltd. As the Franklin contract was entered into by myself, an employee of KDC Pty Ltd applied liquid paper over my ABN on page 21 of the Franklin contract which is exhibited at ZKL2p33 and wrote in the ABN of KDC Pty Ltd.

  1. On 28 November 2014, Mr Li affirmed an affidavit in which this was stated:

On or about 10 November 2011, Raymond and the Claimant (KDC Pty Ltd) entered into a contract for the construction of the Franklin property (the Franklin contract). A true copy of the contract is exhibited at ZKL-pl 5-55.

  1. Exhibited was the altered contract. The appellant submitted that in the six-month period between 23 April 2014 to 28 November 2014, Mr Li went from affirming that the contract had been “entered into by [him]self,” to affirming that “KDC Pty Ltd entered into [the] contract”.
  2. The arbitral claim was made by Kai Design and Construction Pty Ltd against Mr Mi. Mr Li was not made a party. On 11 November 2014, Mr Li’s solicitors expressly declined to amend to add Mr Li. The arbitral claim was predicated on the basis, as asserted by Mr Li’s then-solicitor in his letter of 18 March 2014, that the builder’s rights under the contract had been assigned to Kai Design and Construction Pty Ltd.
  3. This changed on the second day of the hearing. On 24 February 2015, Kai Design and Construction Pty Ltd withdrew its claims. It made an application to remove Kai Design and Construction Pty Ltd as claimant and to add Mr Li as a claimant. That leave was granted, and a Further Amended Statement of Claim dated 25 February 2015 was lodged. It removed Kai Design and Construction Pty Ltd and added Mr Li.
  4. The position at the time of the purported award was, it was submitted by Mr Mi, one of confusion. Kai Design and Construction Pty Ltd, which had made a claim on the basis that it was party to the contract, had withdrawn its claim. Mr Li, who at one time affirmed an affidavit to the effect that Kai Design and Construction Pty Ltd was party to the contract, and who asserted that the builder had assigned its rights to Kai Design and Construction Pty Ltd, asserted in a Further Amended Statement of Claim that he was the counterparty.
  5. The appellant submitted that issue remained joined on the question whether there had been an effective assignment to Kai Design and Construction Pty Ltd. On that issue the arbitrator determined that there had not been. This, Mr Mi submitted, was the issue that the arbitrator determined as to the identity of the counterparty to the contract: whether there had been an assignment to Kai Design and Construction Pty Ltd.

Part Two: Articulation of Mr Mi’s claim before the primary judge

  1. Before the primary judge, Mr Mi articulated his claim in his interlocutory application, the September and October affidavits, and in written submissions. The relevant paragraph in the interlocutory application follows:

Exhibited at ‘WM-6p89-90’ is the business name search of Kai Design and Construction. It shows Olivia Ooi lodged an application to the ACT Government changing the proprietor from Cypress Holding Pty Ltd (ACN 082416386) to Comtal Pty Ltd (ACN 145339457) on 4 November 2011. This was six days before the Contract was signed. The principle address of the business was at 2/70 Dacre Street Mitchell ACT 2911, the same address shown on the Contract (see ‘WM-6p23’). It does not show that Mr Li was a proprietor of Kai Design and Construction at around the contract date of 10 November 2011.

  1. This is from a document entitled “Particulars of Business Name”, lodged on 4 November 2011 with the Office of Regulatory Services. That is some six days prior to entrance into the contract. The form shows an application for “Change to particulars” of the registered business name, “Kai Design and Construction”. It shows that the business name “Kai Design and Construction” was owned by Cypress Holdings Pty Ltd before 1 October 2011, and by Comtal Pty Ltd (“Comtal”) after 1 October 2011 (“Regulatory Services Form”).
  2. Mr Mi made the same assertion later in the September affidavit. He developed it in the October affidavit. In particular:

The Franklin Contract and the Business Name Registration Form shows that Comtal Pty Ltd is the contractual party of the Franklin Contract.

  1. He supported this assertion including by reference to:

(a)          An inclusion list to the contract dated 10 November 2011, which shows the “[c]onstruction company of the proposed resident,” as Comtal;

(b)          An ASIC search showing that the business address for Comtal was at the relevant time, the same as the address written into the contract; and

(c)          The fact that, on 14 November 2011 (i.e., four days after date of the contract), Mr Mi was directed to deposit $10,000 into Comtal’s bank account, and did so.

  1. Mr Mi made the same assertions in written submissions to the primary judge. In his written submissions he gave reasons why it would be wrong to conclude that Mr Li was the counterparty:

The Business Registration Form, the contract and the Inclusion List all points to Comtal Pty Ltd (ACN 145339457) is the true proprietor of the Kai Design and Construction on 10 November 2011 (see WM-6p89-90) and is the contracting party of the contract at the time the contract was entered. (WM-11p1-12, WM-6p5-27, WM6p43-74).”

  1. The issue was discussed in the hearing on 4 October 2017. Mr Mi referred the primary judge to the Regulatory Services Form. The primary judge stated, “Are you taking me to all this to say the plaintiff is not the contractual party of the ACT building contract signed on 10 November?” Her Honour asked whether this issue had been raised with the arbitrator. Mr Mi replied that it had not. He explained that Mr Li’s former solicitor had asserted that Mr Li traded using the name “Kai Design and Construction,” and that the arbitration proceeded on that basis.
  2. He submitted that the Regulatory Services Form, not seen by the arbitrator, showed that “Comfortable Pty Ltd”, referring to Comtal, was the counterparty. He further submitted that the inclusion list showed Comtal as the counterparty, that the persons who signed the inclusion list were directors of Comtal, and that the address of Comtal was the same as that shown on the contract. He submitted that he had paid Comtal.
  3. Taking all of the foregoing matters collectively, Mr Mi’s submission was as follows:

(a)          He had been led to believe by correspondence from Mr Li’s former solicitors that Mr Li was, at the time of entrance into the contract, the owner of the business name “Kai Design and Construction”;

(b)          Later, he perused records kept by the Office of Regulatory Services. There, he discovered the Regulatory Services Form. That showed that Comtal owned the business name at the relevant time. He discovered various other matters—the inclusion list, the business address, etc.—that supported that finding;

(c)          These matters were neither before the arbitrator nor Mossop J.

  1. This was the crux of Mr Mi’s claim to the primary judge: he had not entered into the contract with Mr Li; he had entered into it with Comtal.

Part 3: Mr Li mischaracterised Mr Mi’s claim as having been determined by the arbitrator

  1. Mr Mi submitted that Mr Li relied upon three outlines of written submissions:

(a)          A document of 56 paragraphs entitled, “Plaintiff’s Submissions in relation to the Registration of an arbitral award with the designation IAMA # 5073 as a judgment of the Australian Capital Territory Supreme Court,” dated 15 September 2017;

(b)          A document of 43 paragraphs entitled, “Plaintiff’s Supplementary Submissions in relation to the Registration of an arbitral award with the designation IAMA # 5073 as a judgment of the Australian Capital Territory Supreme Court,” dated 3 October 2017;

(c)          A document of 22 paragraphs entitled, “Plaintiff’s Submissions in relation to the Unsworn Affidavit of Wai Man Mi sent by email to Baker Deane and Nutt at 1.42pm, 3 October 2017,” which does not bear a date but which was relied upon at hearing on 4 October 2017.

  1. The Supplementary Submissions directly addressed the content of Mr Mi’s interlocutory application and the supporting affidavits. There, at [35]—[37], Mr Li submitted as follows:

[35]         The defendant by his Application in proceeding continues to contend and argue that there had been an assignment of the contract by the plaintiff to the company, Kai Design and Construction Pty Ltd, and therefore the award made in favour of Mr Li in his personal capacity, is invalid.

[36]         It is unnecessary to say anything else about this issue, other than to point out it was dealt with comprehensively by the arbitrator, and rejected by him.

[37]         The arbitrator’s conclusion was that there was no assignment by the plaintiff, Zheng Kai Li to the company, see paragraph E31 of the award (page 25 of Exhibit ZK-1).

  1. The appellant submitted that this was an inaccurate description of Mr Mi’s submissions to the primary judge. It was not part of Mr Mi’s case that there had been an assignment of contractual rights or obligations to Kai Design and Construction Pty Ltd. His claim was that the original counterparty was Comtal and not Mr Li.
  2. In oral submissions, counsel for Mr Li stated as follows (P-25.15-22):

I haven’t in the shortness of time receiving the affidavit yesterday gone through and prepared a matrix of what the arbitrator, what Mossop J dealt with and what Mr Mi is now alleging but my cursory examination of those is there’s an enormous amount of overlap.

  1. Mr Mi’s claim was not articulated for the first time in the October affidavit, the appellant submitted. Rather, it was articulated in Mr Mi’s application dated 15 September 2017 and in the September affidavit. The October affidavit provided further evidence in support, but the claim remained the same.
  2. Counsel for Mr Li submitted that the argument advanced by Mr Mi had been dealt with by the arbitrator under the heading of “Assignment”, and by Mossop J.
  3. The appellant submitted that nowhere did Mr Li, in written or oral submissions, recognise that the issue agitated by Mr Mi in his interlocutory application raised a completely separate issue to assignment. The appellant submitted that Mr Mi raised the factual issue of who were the parties to the contract and that Mr Li’s submissions appeared to lead the Court into error:

MR VIVEKANANDA: Yes. We also say if you examine the argument, it was actually dealt with by the arbitrator.

HER HONOUR: Well, that’s what I thought.

MR VIVEKANANDA: Under the heading of Assignment.

HER HONOUR: All right.

MR VIVEKANANDA: That issue was also argued before Mossop J as well. That issue is something I think I dealt with in my submissions.

  1. The appellant submitted that this was not accurate. As Mr Mi explained, he did not have the Regulatory Services Form, and had not investigated other documents relating to Comtal, until September 2017.
  2. In this way, Mr Mi submitted that the primary judge failed to address Mr Mi’s claim, and adopted Mr Li’s mischaracterisation of Mr Mi’s claim, stating as follows at [4]:

The defendant now resists the application for enforcement, primarily because he says that the plaintiff is not the contractual party to the agreement. He contends that the agreement was assigned by the plaintiff to Kai Design and Construction Pty Ltd. The defendant has filed an application (on 15 September 2017) seeking a declaration to that effect.

  1. Mr Mi submits this is a mischaracterisation of his claim, of which assignment was no part. Nor is it correct to say that he sought a declaration to the effect that the agreement was assigned to Kai Design and Construction Pty Ltd. The declaration that he sought was simply that Mr Li was not a party to the contract.
  2. The primary judge identified that Mr Mi had adduced affidavit evidence in support of his claims, but said at [22] that “it [was] unnecessary to refer further to its factual content,” because the arguments that Mr Mi made could be “disposed of at law”.
  3. The primary judge reasoned that the principle established in Anshun precluded Mr Mi from advancing his claims. That reasoning is the subject of Ground 2. The appellant submitted that the primary judge’s consideration of Anshun proceeded by reference to a claim that Mr Mi had not made, and not with cognisance of the claim that he had made. Her Honour said this at [28]-[29]:

28.          Second, it seems to me that on a fair reading of Mi v Li, the key issues sought to be raised by the defendant now have in fact already been ventilated and determined, without error being found. Whether there was any assignment by the plaintiff to a company has now been agitated in different ways in two different forums. It is apparent from the reasons of the arbitrator (paragraphs [E9]-[E31]), which was in evidence before me, that the arbitrator expressly considered in detail whether there had been any assignment of contractual rights in the manner alleged by the defendant in these proceedings. The arbitrator rejected the contention that there had been any assignment (see in particular paragraphs [E22]-[E24]).

29.          Further in Mi v Li, Mossop J considered arguments relating to the arbitrator’s treatment of the defendant’s submissions on the point at [47]-[50].

  1. The appellant further submitted that it may be accepted that the arbitrator considered assignment, and that the arbitrator’s treatment of that issue was raised before Mossop J. That, the appellant submits, is not to the point, as Mr Mi was not seeking to re-agitate that issue. His point, it was submitted, was different.
  1. The appellant further submitted that nowhere in the judgment did the primary judge set out Mr Mi’s claim that Comtal was the true counterparty to the contract, and it does not appear in the primary judge’s reasoning that her Honour appreciated the difference between the issue considered by the arbitrator—whether there had been an assignment –and the issue that her Honour was asked to adjudicate—who had been the counterparty to begin with.
  2. Accordingly, in Mr Mi’s submission, the primary judge fell into appellable error.

Consideration

  1. What is sought to be argued under this ground is the issue of the identity of the contracting parties and the contention that the primary judge has mischaracterised that issue. The arbitrator and Mossop J dealt with the validity of an assignment from Mr Li to Kai Design and Construction Pty Ltd. They both found there was no assignment.
  2. Whether or not there was an assignment is not the point being advanced by the appellant. The point advanced by the appellant is the question of who were the parties to the contract. Kai Design and Construction was a business name owned by Comtal Pty Ltd. Kai Design and Construction Pty Ltd was not registered until after the contract was signed. The appellant submits that Comtal was the counterparty to the contract.
  3. Mr Mi entered into a novated arbitration agreement on 25 September 2014. The assignment is set out in the award.
  4. In that agreement the arbitrator noted that Mr Mi objected to the jurisdiction of the arbitrator and the arbitrator sets out how the parties resolved the jurisdictional objection.
  5. In the operative part of the novated arbitration agreement, the following is set out:

The parties agree to refer the following disputes to arbitration, which are to be resolved in IAMA #5073:

(c)          The questions of what relieve (if any) the First Claimant (Kai Design and Construction Pty Ltd) or the Second Claimant (Zheng Kai Li – the respondent) (as the case may be) is entitled to from the respondent (Wai Man Mi – the appellant) by reason of the Building contract, the works purportedly performed under it and matters arising out of or incidental thereto;

  1. This clause conferred upon the arbitrator jurisdiction to determine entitlement to relief including a claim based on quantum meruit. Mr Li elected to pursue the claim against Mr Mi on a quantum meruit basis rather than on a contractual basis.
  2. As was pointed out by the arbitrator in the award at page 71, the question of which entity incurred the cost of the construction work under the contract was an issue of diminished significance as the claim was based on quantum meruit:

Much was made of which entity, i.e. the First Claimant, Second Claimant, or another entity, incurred the costs of the construction work carried out. As the Second Claimant elected to pursue its claim based on quantum meruit this issue is of diminished significance. The Respondent submitted that there is an onus on the Second Claimant to demonstrate and satisfy the Arbitrator of the claimed costs the Second Claimant has incurred or which should be taken into account. The evidence of cost shows that the costs were not all incurred by the Second Claimant but that they were mostly incurred by the First Claimant or Comtal. It is important to recognise that the Franklin Contract was not one in which the personality or attributes of the Second Claimant required the Second Claimant to personally perform the Builder’s obligations under the Franklin Contract. The Second Claimant was therefore entitled to arrange for the work to be carried out by another entity. Zheng Kai Li was at all times the person who had contractual responsibility regardless of who he may have arranged to carry out the work. The Queensland Court of Appeal applied an assessment where the costs were incurred by Enviro Site & Civil Pty Ltd although the plaintiff claiming was Len Lichtnauer Developments Pty Ltd.

(Emphasis added.)

  1. The arbitrator addressed the respondent’s claim on a quantum meruit basis. Mossop J confirmed that the arbitrator addressed the claim on a quantum meruit basis at [15]:

He assessed Mr Li’s entitlement upon a quantum meruit.  In doing so he relied upon the expert evidence in the report of Mr Shepheard who estimated the total construction costs of the works up until the point of termination.   

  1. This ground in relation to the identity of the counterparty fails for the following reasons:

(a)          Mr Mi entered into a novated arbitration agreement as set out above;

(b)          The issue as to who was the builder under the contract was determined by the arbitrator;

(c)          In Mi v Li [2017] ACTSC 54, Mossop J found no error in the arbitrator’s reasoning as to the finding that Mr Li was the builder under the contract;

(d)          The election was made by Mr Li to seek relief on the basis of a quantum meruit claim;

(e)          The relief was granted by the arbitrator to Mr Li on a quantum meruit basis;

(f)          The appellant’s submission as to who was the correct contractual counterparty is now otiose. The issue was dealt with by Mossop J.

  1. No error on the part of the primary judge has been established by the appellant. The primary judge did not err by “misconstruing, misunderstanding, or mischaracterising the appellant’s case”. The primary judge correctly stated at [4] that Mr Mi “resists the application for enforcement, primarily because he says that [Mr Li] is not the contractual party to the agreement”. To the extent that the primary judge went on to state that “[Mr Mi] contends that the agreement was assigned by the plaintiff to Kai Design and Construction Pty Ltd” and did not specifically refer to the Comtal issue in the judgment, this cannot of itself amount to a mischaracterisation of the appellant’s case.
  2. This ground is not made out.

Ground 2: Error in Finding that Mr Mi was Anshun estopped

  1. The appellant submitted in relation to this ground that rejection of Ground 1 would entail the Court concluding that the primary judge did purport to address Mr Mi’s interlocutory application, and that in that event, Ground 2 is reached. The appellant submitted that the primary judge erred in finding that Mr Mi was precluded by application of the principle in  Anshun from advancing his claim.
  2. The appellant submitted in relation to this ground that the question for the primary judge, and for this Court, is whether it was unreasonable for Mr Mi to not have earlier raised his claim that Comtal, and not Mr Li, was the counterparty. The primary judge found that it was. This is challenged. The challenged finding was not made by reference to the credibility of Mr Mi’s evidence, so there is no impediment to this Court preferring its own conclusion.
  3. The primary judge gave two reasons for declining to permit Mr Mi to advance his claim. The two reasons are found at [27] and at [28]-[33].

Issue estoppel?

  1. The appellant submitted that the critical reasoning of the primary judge appears at [28] and [30]:

28.           it seems to me that on a fair reading of Mi v Li, the key issues sought to be raised by the defendant now have in fact already been ventilated and determined, without error being found. Whether there was any assignment by the plaintiff to a company has now been agitated in different ways in two different forums. It is apparent from the reasons of the arbitrator (paragraphs [E9]-[E31]), which was in evidence before me, that the arbitrator expressly considered in detail whether there had been any assignment of contractual rights in the manner alleged by the defendant in these proceedings. The arbitrator effectively found, based on the documentary material before him, that notwithstanding the building contract listed the registered business name of ‘Kai Design and Construction’ as the contractor, the plaintiff as the legal entity trading under that business name was the contracting builder. The arbitrator rejected the contention that there had been any assignment (see in particular paragraphs [E22]-[E24]).

30.          The defendant thus faces a factual finding against assignment by the arbitrator, for which there plainly was evidence, and the finding by this Court constituted by Mossop J that there had been no error in the reasoning process in the terms complained of by the defendant (and recalling the limited scope of review available to the defendant under s 38 of the Act). The defendant’s submissions in these proceedings amount to no more than re-agitating an issue that has been determined against him.

  1. The appellant submitted that the point agitated by Mr Mi before the primary judge was not one that “ha[d] been determined against him,” since he had never before raised it.
  2. The appellant further submitted that there are two errors. First, it was an error to place weight on the factual finding of the arbitrator. The issue for the enforcement court was one of the arbitrator’s jurisdiction, which it must determine itself. Second, contrary to the primary judge’s finding, Mossop J had not made any finding contrary to the case that Mr Mi sought to advance before the primary judge.
  3. An arbitrator only has jurisdiction to make a determination binding on particular parties to the extent that those parties agree to submit their disputes to arbitration. In other words, an arbitrator has no jurisdiction outside of that which the parties to an arbitration agreement have conferred upon him.
  4. The appellant referred to this and related propositions stated in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763 (Dallah).
  5. The appellant in this context underlined the judgment of Lord Mance JSC at 810 [24]:

Arbitration of the kind with which this appeal is concerned is consensual—the manifestation of parties’ choice to submit present or future issues between them to arbitration.

  1. The necessary corollary is that if a person is not, in truth, a party to an arbitration agreement, then the arbitrator has no power at all in respect of that person. In China Minmetals Materials Import and Export Co Ltd v Chi Mei Corpn 334 F 3d 274 at 288 (3rd Cir., 2003), the Court of Appeals for the Third Circuit stated that the court asked to enforce an award may determine independently the arbitrability of the dispute:

After all, a contract cannot give an arbitral body any power, much less the power to determine its own jurisdiction, if the parties never entered into it.

  1. Whether the arbitrator had power or not is a matter to be determined, at the instance of a party or purported party to the arbitration, by a court. Before a court, the arbitrator’s own view as to jurisdiction is not binding: see Dallah at 813 [30].
  2. The appellant submitted that since the arbitrator cannot conclusively determine his own authority, arguments may be raised as to the arbitrator’s jurisdiction in the supervisory court in the seat of arbitration, and in the court in which a purported arbitral award comes to be enforced: see Dallah, at 830 [84].
  3. The appellant further submitted that the equivalent of the “supervisory court of the seat”, here, was Mossop J on appeal under the Act. The equivalent of the enforcement court was McWilliam AsJ: see Dallah at 831 [86]:
  4. Accordingly, as Lord Collins observed (at 834 [96]), “[t]he consistent practice of the courts in England has been that they will examine or re-examine for themselves the jurisdiction of arbitrators”.
  5. Having considered arguments to the effect that enforcement courts were to adopt a more limited form of review, or to show deference to the arbitrator’s view as to his or her own jurisdiction, Lord Collins concluded at 837 [104]:

It follows that the English court is entitled (and indeed bound) to revisit the question of the tribunal’s decision on jurisdiction if the party resisting enforcement seeks to prove that there was no arbitration agreement binding upon it under the law of the country where the award was made.

  1. Were it otherwise, an arbitrator could create jurisdiction for himself or herself, divorced from any agreement by the parties: see Dallah at 850 [159]-[160] and at 849 [148]-[149].
  2. The appellant submitted that Mossop J did not himself examine the question of the arbitrator’s jurisdiction
  3. Mr Mi’s submission to Mossop J is stated in Mi v Li [2017] ACTSC 54 at [47]:

Mr Mi submitted that the arbitrator refused to address the most important question ‘who is the builder?’

  1. Mr Mi made submissions directed at the identity of the proper counterparty. Mr Mi did not advance the proposition sought to be advanced before the primary judge—that Comtal was the counterparty. In the interim, Mr Mi found “new evidence” namely the Business Registration Form described earlier in these reasons. The appellant submitted that Mossop J did not consider for himself whether Mr Li was the counterparty to the contract; rather, his Honour considered whether the arbitrator had considered for himself whether Mr Li was counterparty. This is stated in Mr Mi v Li [2017] ACTSC 54 at [48] and [50]:

48.          I am not satisfied that there is any failure on the part of the arbitrator to address the relevant issue.

50.          For these reasons I do not consider that the arbitrator failed to consider Mr Mi’s submissions.

  1. Mr Mi’s submission to Mossop J was to undertake an examination of whether the arbitrator had jurisdiction, which turned on whether Mr Li or some other entity was Mr Mi’s counterparty. The appellant submitted that Mossop J dealt with the question of whether the arbitrator had considered his own jurisdiction and not the question of whether the arbitrator had jurisdiction.  
  2. The appellant submitted that the arbitrator’s own view of his jurisdiction was irrelevant when Mr Mi was inviting a court to rule on the arbitrator’s jurisdiction. The appellant further submitted that Mossop J had not ruled on the issue. Rather, Mossop J ruled only on whether the arbitrator had considered his own jurisdiction.
  3. The consequence is Mr Mi submitted that no court dealt with the question whether the arbitrator did have jurisdiction to make the purported award: see Dallah. Mr Mi asked the primary judge for a determination of the issue. The primary judge declined to give one on the basis, set out at [28]-[33], that one had already been given. Mr Mi submitted that this was an error.

Anshun estoppel

  1. At [27], the primary judge stated as follows:

Here, there is no reason why legal arguments about the nature of the parties to the arbitration agreement, the nature of the Award or any improper conduct by the plaintiff could not have been agitated in the previous proceedings. There is certainly no satisfactory (or indeed, any) explanation as to why the Court ought entertain a second appeal. To the extent that the issues sought to be agitated here are any different to those determined by Mossop J in Mi v Li, it was unreasonable for the defendant to fail to raise them in those proceedings. The defendant is estopped from pursuing any of the remaining arguments now.

  1. The appellant submitted that it was an error to hold that there was no reason why arguments could not have been agitated in previous proceedings.
  2. The appellant further submitted that whether Mr Mi agitated the point about Comtal before the arbitrator is irrelevant. Mr Mi is entitled to resist enforcement of the purported award whether or not he advanced the Comtal point before the arbitrator.
  3. The appellant submitted that the arbitrator’s view of his own jurisdiction was a matter to which a court, faced with an argument about the arbitrator’s jurisdiction, would give no weight.
  4. Similarly, it was submitted that it is wrong to reason that there was “no reason” why the point could not have been taken before Mossop J. A point was taken before Mossop J concerning jurisdiction. Mossop J dealt with that submission by finding that the arbitrator had considered his own jurisdiction. There was no finding on this point.  
  5. Accordingly, Mr Mi submitted that the primary judge’s statement that there was no reason why argument as to the parties to the arbitration agreement could not earlier have been made proceeds from a false premise that Mr Mi submitted was in error.
  6. The appellant further submitted that it was an error to hold that there was no explanation as to why the Court ought to entertain the point.
  7. The appellant submitted that a characterisation of the proceedings before the primary judge as a “second appeal” is misplaced. It was necessary for Mr Li to seek to enforce the purported award. It was open to Mr Mi to resist enforcement including on the basis that the arbitrator had misconceived jurisdiction and that there was no arbitral agreement between Mr Mi and the person seeking to enforce an award against him.
  8. Further, it was submitted that the primary judge was in error to hold that no explanation had been given as to why the point should be entertained. The explanation was given in written submissions and in Mr Mi’s affidavits. The primary judge, it was submitted, may have overlooked this explanation by reason that, as her Honour recorded at [22], her Honour found it unnecessary to refer to the factual content of Mr Mi’s affidavits.
  9. The appellant submitted that Mr Mi has raised questions concerning the true identity of the counterparty. It was submitted that Mr Li’s, and Kai Design and Construction Pty Ltd’s, solicitors, made contradictory and incorrect assertions as to identity of the contractual counterparty. In these circumstances, it was reasonable for Mr Mi to have not advanced the Comtal point earlier.
  10. As early as February 2015, Mr Mi issued a notice to produce, “asking for the proof of relationship of Zheng Kai Li to the contract.” No document was produced.
  11. The appellant submitted that Mr Li, both in affidavits and through his solicitors, made contradictory and confusing assertions about who was the counterparty to the contract as follows:

(a)          In February 2014, the original claim named Kai Design and Construction Pty Ltd as the claimant, involving an assertion that Kai Design and Construction Pty Ltd was the counterparty;

(b)          On 18 March 2014, after Mr Mi challenged this, Mr Li asserted (through solicitors) that there had been an assignment from Mr Li to Kai Design and Construction Pty Ltd in 2012, involving an assertion that Mr Li was the original counterparty;

(c)          On 26 March 2014, Mr Li’s solicitors again asserted that Kai Design and Construction Pty Ltd was the contractual counterparty, this time relying on the Corporations Act 2001 (Cth) and the law relating to promoters. Enclosed with that letter were:

(i)          A business name showing that, as at April 2012, Kai Design and Construction Pty Ltd was the owner of the relevant business name; and

(ii)         A Building Commencement Notice showing that the Builder’s License holder was Kai Design and Construction Pty Ltd.

(d)          In April 2014, Mr Li made an affidavit that was ambiguous as to whether Mr Li or Comtal owned the business name “Kai Design and Construction,” but again asserted an assignment effective in April 2012;

(e)          In November 2014, Mr Li made a further affidavit asserting that Mr Mi had entered into the contract with Kai Design and Construction Pty Ltd, and that a true copy of that contract was exhibited. However, it was not a true copy, as the ABN of the counterparty in the exhibited document had been altered using white-out; and

(f)          Finally, on the second day of the arbitration hearing, the solicitors for Mr Li and Kai Design and Construction Pty Ltd resiled from the contention that Kai Design and Construction Pty Ltd was the counterparty and pressed an assertion that there had been no assignment.

  1. In November 2016, when proceedings before Mossop J had commenced, Mr Mi again issued a notice to produce, seeking these documents:

1.           GST registration record of Mr Li’s business ABN 55759669879 with the Australian Taxation Office (ATO) from 2011 to 2016.

2.           Trust Deed of the business ABN 55759669879 shown in Appendix A of the Franklin contract.

  1. The documents sought were not produced.
  2. The appellant submitted that these matters are all apparent from the September and October affidavits and they are detailed in Mr Mi’s written submissions. They were addressed in oral submissions. They were not addressed by her Honour. It was therefore submitted that this is an error.
  3. The appellant submitted that it was not unreasonable for Mr Mi to not earlier have raised the Comtal point.
  4. It was submitted that consideration of whether Mr Mi is Anshun estopped from advancing the claim that Comtal was counterparty required consideration of all the circumstances bearing upon unreasonableness in the particular matter.
  5. The primary judge stated at [22] that it was not necessary to consider the factual content of Mr Mi’s affidavits. The appellant submitted that reveals an error in principle.
  6. It was submitted that without considering Mr Mi’s explanation for not earlier having raised a claim, the primary judge failed to perform the analysis required for a finding of Anshunestoppel (consideration of all circumstances bearing on unreasonableness) and is therefore in error.
  7. The appellant submitted that it was not unreasonable for him not earlier to have raised the claim because:

(a)          So far as there was confusion as to who was the counterparty, it was caused by Mr Li and Kai Design and Construction Pty Ltd.

(b)          It is open to a person in Mr Mi’s position to resist the enforcement of an award at the enforcement stage on the basis that the arbitrator lacked jurisdiction to make the award.

  1. The appellant also underlined a finding of Anshun estoppel should not be made lightly: see Solak v Registrar of Titles [2011] VSCA 279; 33 VR 40 at [73]-[74] (Warren CJ, Neave JA and Hargrave AJA agreeing) and the discussion of inconsistent judgments.
  2. For these reasons, Mr Mi submitted that the Court would find that it was not unreasonable for him to raise his claim before the primary judge, and therefore would reverse the finding that he was estopped from doing so by operation of the Anshun principle.

Consideration

  1. This ground is dealt with on the basis that the primary judge did not specifically deal with the Comtal argument put forward by Mr Mi.
  2. The doctrine of Anshun estoppel applies to prevent the appellant from raising in a subsequent proceeding an issue which should have been raised in the earlier proceedings. The primary judge stated the following at [24]-[27]:

24.          First, the defendant has already invoked his right of appeal under the Act, resulting in the judgment of Mi v Li.  The parties here are the same as those in Mi v Li. The Award the subject of these proceedings is the same award that was under challenge in Mi v Li.  This is plainly a case where the doctrine of Anshun estoppel applies. Such a doctrine prevents a party to litigation in which a final judgment was given (or that party’s privy) from raising in subsequent litigation an issue or cause of action which was, or which should have been, raised in the first proceedings: see, generally, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597-603 per Gibbs CJ, Mason and Aickin JJ, referred to in Notaras & Anor v St George Bank Ltd & Ors [2005] ACTSC 5; 157 ACTR 1 at [8].

25.          The doctrine applies to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time: Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; (per Wigram V-C at 115), cited in Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126 per Refshauge ACJ at [270].

26.           The test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings: Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434; 263 ALR 556 at [60].

27.          Here, there is no reason why legal arguments about the nature of the parties to the arbitration agreement, the nature of the Award or any improper conduct by the plaintiff could not have been agitated in the previous proceedings. There is certainly no satisfactory (or indeed, any) explanation as to why the Court ought entertain a second appeal. To the extent that the issues sought to be agitated here are any different to those determined by Mossop J in Mi v Li, it was unreasonable for the defendant to fail to raise them in those proceedings. The defendant is estopped from pursuing any of the remaining arguments now.

  1. The primary judge was correct in finding that this was a case where the doctrine of Anshun estoppel applied. The doctrine applies to the Comtal issue sought to be argued under this ground, on this appeal. The Anshun test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings: Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434; 263 ALR 556 at [60]. The argument relating to Comtal could have been agitated in the previous proceedings. It was unreasonable for the appellant to fail to raise this issue in the proceedings before Mossop J: Mi v Li [2017] ACTSC 54. It should be noted in this context that Comtal was referred to in the award. This was amatter noted above at [91] in the extract of the award. Although Mr Mi claims to have discovered “new evidence” bearing on the issue, the evidence is, and has at material times, been available on the public record. Mr Mi has no reasonable explanation as to why he did not seek out and utilise the evidence in the course of the arbitration or the proceedings before Mossop J. Moreover, Mr Mi did indeed contract to arbitrate his dispute with Mr Li, and the award based on a quantum meruit did not depend upon identification of Mr Li as the original contracting party.
  2. We find no error in the approach outlined by the primary judge.

Ground 3: Error in Relying on r 3254

  1. Rule 3254 of the Rules provides, in broad terms, that appeals to the Supreme Court from awards made under the Act are to be brought within 28 days.
  2. The primary judge dealt with r 3254 at [34]:

Third, any separate judicial review proceedings are out of time, given that more than a year has passed since the Award was delivered, with the reasons for the Award also provided on that date. This is well beyond the 28-day time limit stipulated in r 3254 of the Rules. I am not satisfied that in the circumstances of this case, any undue hardship would otherwise be caused (particularly because the defendant has already availed himself of the judicial review provisions under the Act) and accordingly, under s 48(3) of the Act, there is no power to extend time.

  1. The appellant submitted that this was an error. Mr Mi was not bringing “separate judicial review proceedings.” Nor was he agitating an appeal under s 38 of the Act, and that therefore r 3254 had no application.
  2. Similarly, and for the same reason, it was submitted that there was no occasion for consideration of whether an extension of time ought to be granted under s 48 of the Act. There was no “time appointed by or under this Act or fixed by the agreement or by an order under this section for doing any act or taking any proceeding in or in relation to an arbitration,” in respect of which Mr Mi required an extension.
  3. The appellant submitted that awards made under the Act are not automatically enforceable as judgments of the Supreme Court. A person seeking the benefit of a purported award requires the leave of the Court so to do, as set out in s 33 of the Act:

An award made under an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect and where leave is so given, judgment may be entered in terms of the award.

  1. It was submitted that if Mr Li wished to enforce the purported award, it was incumbent upon Mr Li to seek the leave of the Court. Mr Mi was entitled to oppose that leave including on the basis set out in Dallah, and on the basis that the condition prescribed in s 33 had not been met: i.e., the award was not made “under an arbitration agreement.”
  2. Mr Mi required no extension of time to oppose Mr Li’s application. It was submitted that in reasoning on the basis that an extension was required, the primary judge was in error.  

Consideration

  1. This ground can be dealt with succinctly. Section 33 does not confer a right of review of an award. Sections 38 and 42 confer limited rights of review of an award. Rule 3254 provides that such a review must be instigated within 28 days of the delivery of the award.
  2. The appellant has exercised his rights of review under ss 38 and 42 before Mossop J.
  3. The appellant has already availed himself of the judicial review provisions available under the Act. The principles in Henderson and Anshun preclude the appellant from agitating an issue that should have been raised at the time the appellant sought to review the award before Mossop J.
  4. We find that there is no error in the approach adopted by the primary judge.

Consideration

  1. The appeal against the orders of McWilliam AsJ is dismissed.
  2. The appellant is to pay the respondent’s costs of this appeal.