Lieschke v Lieschke [2023] NSWCA 241

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lieschke v Lieschke [2023] NSWCA 241 Hearing dates: 12 July 2023 Date of orders: 13 October 2023 Decision date: 13 October 2023 Before: Leeming JA at [1]; Payne JA at [2]; Beech-Jones JA at [3] Decision: (1) Grant the applicants leave to appeal. (2) Direct the applicants file within 7 days a notice of appeal in the form of the draft amended notice of appeal. (3) Allow the appeal and: (a) Set aside the orders made by the primary judge on 16 December 2022 and 16 February 2023; (b) In lieu thereof, order that the proceedings be dismissed. (4) Order the first respondent to pay the applicants' costs of the proceedings at first instance and in this Court. Catchwords: COMMERCIAL ARBITRATION — appeal against decision to set aside arbitral award — dissolution of family farming partnership — parties retained accountants to review partnership accounts — respondent filed amended statement under s 23(1) of Commercial Arbitration Act 2010 (NSW) seeking finding that certain properties were partnership assets and variations to partnership accounts — parties otherwise assumed correctness of partnership accounts — interim award rejected claim that properties were partnership assets — respondent retained new solicitors and additional accountant — new accountant contended for completely different accounting approach — respondent sought to introduce new "case" based on new accountant's report into accounting conclave convened between existing accountants to resolve remaining accounting issues — no application to amend statement under s 23(1) — arbitrator made order precluding existing accountants from conferring with new accountant — final award made — primary judge held award should be set aside on basis that respondent was unable to present his case and award was contrary to public policy — Commercial Arbitration Act 2010 (NSW), ss 34(2)(a)(ii) and (b)(ii) — reasonable opportunity to present a "case" does not extend to putting an available case not adverted to in statement filed under s 23(1) nor sought to be subject to amendment under s 23(3) — amended points of claim and submissions identified each party's "case" and issues in dispute — entitlement to reasonable opportunity does not protect a party from their own "strategic choices" — leave to appeal granted — appeal allowed — proceedings seeking to set aside arbitral award dismissed — respondent to pay applicants' costs Legislation Cited: Arbitration Act 1974 (Cth) Commercial Arbitration Act 2010 (NSW) International Arbitration Act 1974 (Cth) Supreme Court Act 1970 (NSW) Cases Cited: Aircraft Support Industries Pty Ltd v William Hare UAE LLC [2015] NSWCA 229; (2015) 298 FLR 183 Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Colin Joss & Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 735 Lieschke v Lieschke [2022] NSWSC 1705 Lieschke v Lieschke (Costs) [2023] NSWSC 92 Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2018] QCA 39 PBO v DonPro [2021] EWHC 1951 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83 Category: Principal judgment Parties: Malcolm Jade Lieschke (First Applicant) Michelle Lieschke (Second Applicant) Erroll Wayne Lieschke (First Respondent) John Anthony McGruther (Second Respondent) Representation: Counsel: Dr C Birch SC with Mr J Mack (Applicants) Mr G Burton SC with Mr J O'Sullivan (First Respondent)