Thaler v Amzalak (No 2) [2013] NSWSC 632

Supreme Court New South Wales

Medium Neutral Citation: Thaler v Amzalak (No 2) [2013] NSWSC 632 Hearing dates: 26 February 2013, 27 February 2013, 28 February 2013, 1 March 2013, 8 April 2013, 9 April 2013, 10 April 2013, 6 May 2013, 7 May 2013, 8 May 2013 Decision date: 27 May 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Mr Thaler's summons is dismissed 2. The Beth Din's award is set aside. Catchwords: ARBITRATION - award - enforcement of an arbitral award - arbitral award made by Beth Din in Zablo - summons seeking leave to enforce award - cross-summons seeking to set aside the award - failure to give reasons - credibility and reliability of witnesses - Beth Din of Zablo - whether Beth Din decision complied with the requirements of s 29(1)(c) - allegation of fraud - allegation of misconduct - whether plaintiff established that he was a party to Beth Din proceedings - problems with record keeping at Beth Din proceedings - notice and opportunity to be heard - Beth Din not conducted in accordance with written arbitration agreement - requirement of impartiality not met - bias established - use of Yiddish - proper attention not paid to defendant's case - orders sought under s 43 of Commercial Arbitration Act 1984 cannot be made - orders - costs

EVIDENCE - leave sought by Mr Thaler to give evidence in reply - leave refused - ruling under s 136 of the Evidence Act in relation to Mr Koncepolski's evidence sought - ruling refused

PROCEDURE - notice of motion - order seeking to set aside subpoena - motion dismissed

PROCEDURE - pleadings - leave to amend further amended cross-summons - leave granted Legislation Cited: Civil Procedure Act 2005 Commercial Arbitration Act 1984 (repealed) Commercial Arbitration Act 2010 Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522; 286 ALR 501 D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2010] WASC 130 Doran Constructions Pty Ltd v Health Administration Corporation of New South Wales (unreported 10 October 1994 New South Wales Court of Appeal) Gas & Fuel Corporation of Victoria v Wood Hall Ltd [1978] VR 385 Gordian Runoff Ltd v Westport Insurance Corporation [2010] NSWCA 57; (2010) 267 ALR 74 Leveraged Equities Pty Ltd v Huxley [2010] NSWCA 179 Mond v Berger [2004] VSC 45; (2004) VR 534 Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255; (2007) 18 VR 346 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Watson v Foxman (1995) 49 NSWLR 315 Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239 Category: Principal judgment Parties: Shlomo Thaler (Plaintiff) Benjamin Amzalak (also known as Binyomin Zeev Amzalak) (Defendant) Representation: Counsel: Mr M S White with Mr P Afshar (Plaintiff) Mr G Segal with Mr M A Friedgut (Defendant) Solicitors: Peter M Wayne & Associates (Plaintiff) Brown Wright Stein Lawyers (Defendant) File Number(s): 2010/361581 Publication restriction: None