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

New South Wales Supreme Court

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

HEARING DATE(S) : 20 March 2009

JUDGMENT DATE : 31 March 2009

JURISDICTION : Equity Commercial List

JUDGMENT OF : White J

DECISION : 1. Judgment for the plaintiff for AUD$530,000 plus interest from 11 January 2008 to the date of judgment at 0.021 percent per day and judgment for RMB 323,932.60 Yuan plus interest from 11 January 2008 to the date of judgment at the same rate; 3. order that the defendants pay the plaintiff's costs; 4. exhibits may be returned after 28 days.

CATCHWORDS : ARBITRATION - plaintiff sought to enforce Chinese arbitral award against the defendants – defendants contended that to enforce award would be contrary to public policy – enforcement found to not be contrary to public policy

International Arbitration Act 1974 (Cth) LEGISLATION CITED : Commercial Arbitration Act 1984 (NSW) Migration Act 1958 (Cth)

Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 CASES CITED : Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120 Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391

Xiaodong Yang PARTIES : v S & L Consulting Pty Ltd & Anor

FILE NUMBER(S) : SC 50162/08

COUNSEL : Plaintiff: J Hogan-Doran Defendants: D Meltz

SOLICITORS : Plaintiff: Gray & Perkins Defendants: Marque Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

WHITE J

Tuesday, 31 March 2009

50162/08 Xiaodong Yang v S & L Consulting Pty Ltd & Anor JUDGMENT 1 HIS HONOUR: This is an application to enforce an arbitral award made in China on 12 December 2007 as corrected on 21 December 2007. The principal issue is whether enforcement of the award would be contrary to public policy. 2 The plaintiff is a Chinese national. In April 2002 he applied for a subclass 127 (business owner) visa to allow himself and his family to reside permanently in Australia. He retained the services of the second defendant, Mr Stephen Lee, a registered migration agent. On 27 May 2003 the plaintiff, Mr Yang, was advised by the Australian Consulate in Hong Kong that his application for a permanent entry visa to Australia for himself, his wife and his son had been approved. 3 On 12 January 2004 an agreement was entered into expressed to be between the plaintiff (described as the investor) and the first defendant, S & L Consulting Pty Ltd, (described as the "Consultancy Company"). The agreement was also signed by Mr Lee as guarantor and he assumed personal obligations under it. Clause 10 provided that any dispute arising out of, or relating to, the agreement should be submitted for arbitration to the China International Economic & Trade Arbitration Commission according to that Commission's arbitration rules. The clause provided that the arbitral award would be final and binding on both parties. It was pursuant to that submission to arbitration that the arbitral award which the plaintiff now seeks to enforce was made. 4 The agreement was in Mandarin. It included the following provisions as translated into English by a Ms Kardashinsky, an interpreter and translator accredited by the National Accreditation Authority for Translators and Interpreters. She provided the following translation: " This agreement has been entered into as follows: