Bhushan Steel Ltd v Severstal Export GmbH

The Contentions of the Parties 45Bhushan seeks relief provided for under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) 25.14 in aid of the Delhi claim. Severstal (and there does not appear to be any issue about this) has no assets in India. Bhushan intends, it says, to enforce any Indian judgment it obtains against Severstal's Australian assets. 46The rule pursuant to which the plaintiff moves is in the following terms: 25.14 Order against judgment debtor or prospective judgment debtor or third party (cf Federal Court Rules Order 25A, rule 5) (1) This rule applies if: (a) judgment has been given in favour of an applicant by: (i) the court, or (ii) in the case of a judgment to which subrule (2) applies-another court, or (b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in: (i) the court, or (ii) in the case of a cause of action to which subrule (3) applies-another court. (2) This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the court. (3) This subrule applies to a cause of action if: (a) there is a sufficient prospect that the other court will give judgment in favour of the applicant, and (b) there is a sufficient prospect that the judgment will be registered in or enforced by the court. (4) The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur: (a) the judgment debtor, prospective judgment debtor or another person absconds, (b) the assets of the judgment debtor, prospective judgment debtor or another person are: (i) removed from Australia or from a place inside or outside Australia, or (ii) disposed of, dealt with or diminished in value. (5) The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a "third party") if the court is satisfied, having regard to all the circumstances, that: (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because: (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or (b) a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment. (6) Nothing in this rule affects the power of the court to make a freezing order or ancillary order if the court considers it is in the interests of justice to do so. 47Bhushan submits that the requirement that there be a good arguable case (UCPR 25.14(1)(b)) is comfortably satisfied. It is also submitted that that threshold is a low one. It is further submitted that the notion of good arguable case is a lesser standard for example than prima facie cause of action. 48It is contended that the Delhi proceedings are at a relatively advanced and mature stage. In those proceedings Bhushan's case is supported by reports prepared by SGS which opine upon the defects in some of the steel delivered. It is submitted that the notion of sufficient prospects in r 25.14(3)(a) does not relate to the strength or quality of the case but rather to the prospect of an actual judgment materialising. It is also submitted that any Indian judgment will be enforceable in Australia (r 25.14(3)(b)). 49It is submitted that the assets, namely the amount currently deposited in Severstal's solicitors trust account would be removed from Australia or disposed of unless Severstal is restrained. It is submitted that Severstal has no assets in India and its position elsewhere particularly Switzerland is problematical. 50With Bhushan prepared to give the usual undertakings to damages it is contended that all of the discretionary factors weigh in favour of the grant of the relief sought. 51In broad terms Severstal submits that many of the arguments that Bhushan advances before the Court on this occasion are substantially the same if not identical to those which were advanced before Simpson J and which she rejected. It is therefore submitted that the judgment of Simpson J gives rise to an issue of estoppel and/or it would be an abuse of process to permit Bhushan to raise the same issues before the Court on this occasion. 52Severstal urges that the Court should move with some considerable caution in granting the freezing order requested. It is further contended that one should be sceptical about the assertion that Bhushan has a good arguable case in the Indian proceedings. It is merely an assertion to that effect. Severstal contends it has very good defences in the Indian proceedings. It contends that the SGS reports for example relate to cold rolled steel coils and not the hot rolled steel coils supplied, but in any event the steel was not defective. 53Severstal says that it is by no means clear that a judgment in Bhushan's favour in India would necessarily be enforced in Australia. India it is submitted is not a country in respect of which part 2 of the Foreign Judgments Act applies. 54It is further contended by Severstal that I should reject the notion that there is any possibility that a judgment will be wholly or partly unsatisfied. It is said there is simply no evidence of any real danger that Severstal would not meet its obligation if judgment were granted against it in India. 55Lastly Severstal submits that the freezing order is an exceptional remedy really directed to minimising the possibility of an unscrupulous defendant seeking to render itself "judgment proof". In the absence of any evidence of the possibility of frustration of the Court's process and where the outcome of the litigation is entirely uncertain the Court is urged to exercise its discretion against granting a relief claim.

Issue Estoppel / Abuse of Process 56Severstal points to a number of factors in support of the argument that the judgment of Simpson J gives rise to an issue estoppel or alternatively that it would be an abuse of process to permit Bhushan to re-litigate the same issues in support of the application for the freezing order. 57Severstal points to the fact that Bhushan's application in this Court was for a stay of the enforcement of the judgment and it did not seek to set aside the registration of that judgment as indeed it was entitled to under s 7 of the Foreign Judgments Act. Severstal relies upon submissions made by Bhushan's Counsel before Simpson J and a concession (contained in paragraphs 23 and 24 of the submissions before her Honour) to the effect that the issues agitated in the Indian and Geneva proceedings were "substantially identical". It was also pointed out that Counsel for Bhushan contended that the litigation in New Delhi and the litigation in Geneva arise from a common substratum of fact. 58It is of course rightly pointed out by Bhushan that the arguments immediately referred to above put by it were not accepted by the judge. For example she did not accept that there was a common substratum of fact between the proceedings in Geneva and India. She was of course otherwise unpersuaded that the conclusion of the proceedings in India could be seen as imminent and further she rejected Bhushan's submission that Severstal should have sought to enforce the Geneva judgment in India rather than Australia. 59Severstal submits that what Bhushan seeks to do here is to advance "substantially the same grounds" as it did before Simpson J in support of the freezing order. Therefore the judgment of Simpson J in the exercise of her discretion rejecting the stay should operate as an issue estoppel in respect of the "issues" before her and that Bhushan should not be permitted to raise the same issues again. Reliance is placed upon Blair v Curran (1939) 62 CLR 464, Ramsay v Pigram (1968) 118 CLR 271 and Kuligowski v Metrobus (2004) 220 CLR 363. 60Alternatively Severstal submits that it would be an abuse of process for Bhushan to relitigate the same issues. A number of authorities are referred to in the written outline (paragraph 47 of Severstal's submissions). 61Before coming to the authorities on these questions it is important to revisit what precisely was before the courts in Switzerland and India, prior to considering the detail of the matter which was dealt with by Simpson J.

The Swiss Proceedings 62In the judgment of the Court at first instance in Geneva dated 18 June 2009 it is abundantly plain that the particular proceeding concerned contract 50754 only. Further as is obvious from the judgment the question for determination was whether according to Swiss law or as the trial judge said "more precisely the United Nations Convention on Contracts for International Sale of Goods" Severstal was correct in law in rescinding the relevant contract. The second question clearly was whether it was entitled to a claim in damages for the difference between that which it had recouped by reselling the relevant shipment of steel and the contract price it had with Bhushan. 63It was asserted by Bhushan in those proceedings that it was not contractually bound to Severstal because Severstal had not countersigned the order confirmation by hand and that a subsequent letter sent by Bhushan of 1 April 2005 amounted to a revocation of its prior offer to acquire the goods. It was further added that the mitigating resale of the goods was too long after the event and that storage costs had not been proven. More particularly it was contended by Severstal that it had received certain defect notices that were too late and related to goods which had been accepted and utilised by Bhushan. In addition the letter of 1 April 2005 which had been relied upon was fabricated for the purposes of the proceedings and had never been received by Severstal or its agent, Mahindra. The reason Bhushan had refused to execute the contract so Severstal asserted was because it wanted to renegotiate the agreed price due to fall in market prices and not because of any defects in the quality of the steel. 64In its case in reply Bhushan more particularly asserted that the norms established by the parties were such that they only intended to be bound contractually when handwritten signatures had been placed on orders hence as that had not occurred here the disputed sale was not valid and legally binding. Severstal it was said should have delayed opening the letter of credit supplied by Bhushan which it should have done in mitigation of its damages claim. Further it was asserted that the letter of 1 April was indeed genuine and postal receipt for the despatch of the letter to Severstal agent Mahindra established its authenticity. 65The learned trial judge considered whether or not Bhushan was contractually bound and further noted that Bhushan in the course of the proceedings no longer claimed that it had revoked the contract because there was no evidence that the letter of 1 April was actually delivered to the claimant or its representative. The trial judge seems to have found that Bhushan indeed did desire to renegotiate a lower price due to a fall in the price of steel which was refused by Severstal. The trial judge then made an express finding that the parties were validly bound by "order confirmation no. 50754". 66Further by reason of the fact that Bhushan did not pay the contractually agreed price at the agreed time the judge considered that that should be regarded as a fundamental breach of the contract within the relevant Convention. The trial judge rejected the criticism of Severstal for having prematurely opened the letter of credit, and found the damages were substantiated and awarded the relevant sum with interest and costs. 67The trial judge it seems had before her evidence in relation to the dealings between the parties in respect of other orders. What is reasonably apparent from her judgment is that the question of quality and in particular surface defects featured in a number of respects. First and foremost there was an internal email between the quality control manager of Bhushan and another Bhushan manager dated 6 January 2005 when certain defects were discussed. It is also apparent the meeting took place in India between representatives of Severstal and those of Bhushan on 27 and 28 January 2005 when as the learned trial judge points out there were discussions about quantity, quality and price. There was evidence before the judge from Severstal that during the visit representatives of Bhushan had requested that the surface of the goods be improved. Those representing Severstal alleged they insisted it was not possible and Bhushan's representatives said they would "live" with the defects. 68Evidence was given by a witness Mr Reincke (an employee of Liberty Steel who was an agent of Severstal). Employees of Mahindra were also present at that meeting. They corroborated Mr Reincke. However there was clearly evidence called by Bhushan from two witnesses both with the surname Sharma and both former employees of Bhushan who indicated by their evidence it seems a contrary version of events. They asserted that various persons on behalf of Severstal had indicated that they would do what they could to improve the quality of the steel and that there would no longer be any problem. They gave evidence about the nature of the defects which caused crumbling and irregular appearance. Further they gave evidence it seems that the coils had been returned to Bhushan by its clients and despite assurances given by Severstal on 27 January 2005 the problem was not resolved. 69It appears that the evidence concerning the alleged defects was not raised by Bhushan as a defence but rather it appears to explain its conduct. It is also plain that the trial judge determined the matter without regard to who in fact was telling the truth about the meeting in January 2005 or whether or not the letter of 1 April for example was in fact authentic or not. Those matters were purely collateral to those proceedings. The judgment really was to the effect that Bhushan was validly bound by the contract and that it had tried to renegotiate price because of a downturn in steel prices and resistance on the part of its customers. It was therefore it seems unnecessary for the judge to make any determination in relation to defects or indeed the level of defects or indeed the credit of the respective witnesses. 70The decision of the Court of Appeal in Geneva was handed down on 20 January 2010. That Court appears to have accepted all of the factual materials that were before the trial judge. The central question in the appeal appears to be whether, as Bhushan asserted that according to usage established between the parties, their intention was that they would only be contractually bound when both of them had signed the order confirmation by hand and that the order in relation to this particular shipment had not been signed therefore it was not a valid contract. 71The Court of Appeal found that Swiss law was the applicable law and that Bhushan by its letter of 9 March 2005 to the appellant had made an offer which was accepted by Severstal but modified in relation to the date for the opening of the letter of credit. The Court observed that although 5 previous order confirmations had the signatures of both parties upon them that was insufficient in order to establish that the parties were making the validity of the contract conditional upon a requirement of form to the effect that a handwritten signature was essential. In all the circumstances the Court confirmed the trial judge's view that there was a concluded contract. As each of the relevant events post dated the alleged letter of 1 April 2005, on any view it could have had no effect in revoking the contract. The balance of the judgment thereafter dealt with whether or not Severstal's conduct was reasonable in the way in which it went about selling (at a lower price) the goods following the refusal by Bhushan to take delivery. In general terms, the Court confirmed the reasonableness of Severstal's behaviour in all of the circumstances. It accordingly confirmed the trial judge's judgment.

The Indian Proceedings 72The proceedings in India, in the High Court in Delhi were commenced on 8 January 2007. In those proceedings Bhushan as plaintiff claims damages against Severstal and Mahindra. The suit relates only to contracts numbers 50002, 50487 and 50625. The narrative set out in the plaintiff's claim, (more specifically described as a suit for recovery) asserts quite explicitly that following the delivery of the first two orders (contract no. 42134 and 50002) received in Bhushan's factory between 27 December 2004 and 5 January 2005 it was found that there were defects in the surface quality and there is what is described as "slivers". It is asserted that due to the surface defects it was not possible to use the coils for the purpose and use for which they were purchased i.e. cold rolling, which in turn was for use in inner and outer panels in automobiles. It is asserted that the plaintiff informed Mahindra (as agent for Severstal). It is asserted that during the January 2005 visit by representatives of Severstal they noted the defects and apparently it will be asserted gave assurances that they would take care of those defects in future lots. Bhushan asserts that it used the hot rolled steel coils of 1F grade supplied by Severstal to make cold rolled steel coils to be used in automobile manufacture. 73Bhushan pleads that by reason of it intending to have a long term relationship with Severstal and upon the assurance there would be no defects in future lots it made, it put in two further orders (50487 and 50625) and it is further pleaded that Bhushan negotiated and agreed to pay the particular price for specified goods of specified quality. 74As a result of the defects it was not possible to use the coils for the purpose for which they were intended and they were used for the preparation of galvanised sheets which have a much lower commercial value than the outer or inner panels for use in automobile manufacture. Having complained about the defects again and having informed Severstal that the steel could not be used for the designated purpose, it required a further inspection which was denied. As a result Bhushan appointed SGS to provide expert opinion and give a report. SGS prepared numerous reports in relation to coils from each of the relevant orders. In respect of the shipments which totalled in all 18,108.50 metric tonnes approximately 8,111.63 metric tonnes were found to be defective. 75It is pleaded that there was contractual obligation to guarantee surface quality to a minimum of 95%. Further it is suggested that the surface defects were impossible to ascertain with the naked eye and can only be observed after they are put in the process of converting the hot rolled coils to cold rolled coils. Bhushan asserts that it has fully paid for the three orders but that the payment amongst other things was made pursuant to a misrepresentation, and that Severstal has been unjustly enriched. 76It is also asserted that the periods of time designated pursuant to the contract namely 30 days and/or 60 days for the purposes of raising matters of defects are unreasonable given the nature of the defects. In all the circumstances Severstal is estopped from relying upon the time frames specified in the claims procedure clause and that a further estoppel arises because of the assurances given by Severstal or its agent and that it would be unconscionable and contrary to law that the provisions of the contract in that regard be relied upon. 77The original defence filed on behalf of Severstal in these proceedings places a number of matters in issue. First it is asserted that no cause of action is disclosed. This is initially put on the basis of the claims procedure and that the defects were not pointed to within the agreed time frame. It is further asserted that the proceedings are inappropriate because of (implicitly) the Swiss proceedings. Further it is asserted that foreign law governs the termination of the contractual issues and therefore (again implicitly) India is an inappropriate forum. There are other matters raised and then there is a detailed response on the merits which amongst other things denies the assertions in relation to the various assurances provided by Severstal's employees. 78Severstal has filed an amended statement in the Indian proceedings which does not add substantially to its original defence. 79By order of the High Court in Delhi, Justice S Ravindra Bhat on 3 December 2010 framed the issues which that court will determine: "After hearing counsel for the parties and with their consent, following issues are framed:- (i) Whether this Court has territorial jurisdiction to entertain and try the present suit? (ii) Whether the suit is barred by Section 13 CPR and/or res judicata on account of the judgment and decree dated 18.06.2009 by the Geneva Court? (iii) Were the goods supplied to the plaintiff by the first defendant defective and not in conformity with the contract vis-à-vis their quality and specifications? (iv) Whether the suit is time barred in law and/or agreed upon by any terms of the contract? (v) Whether the plaintiff is entitled to any amount claimed in the suit or any other amount? (vi) Whether the plaintiff is entitled to interest, if so, on what amount, at what rate and for what period? (v) Relief". 80As will be apparent later in this judgment the above proceedings are part heard and, as far as the Court is aware, are still proceeding. It would appear that no preliminary points have been taken by way of strike out or to otherwise have determined any preliminary points. The matter is proceeding on the merits and all other issues it seems.

The Proceedings Before Simpson J 81In the proceedings before Simpson J it was agreed that the application by Bhushan in those proceedings was made pursuant to s 135(2)(c) of the Civil Procedure Act 2005 (NSW) (CPA) which states as follows: 135 Directions as to enforcement (1) The court may, by order, give directions with respect to the enforcement of its judgments and orders. (2) Without limiting subsection (1), the court may make any of the following orders: (a) an order authorising the Sheriff to enter premises for the purpose of taking possession of goods under a writ of execution, (b) an order prohibiting the Sheriff from taking any further action on a writ, (c) an order prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order of the court, (d) an order requiring the Registrar-General to cancel any recording of a writ for the levy of property that, under section 105 of the Real Property Act 1900 , has been made in the Register under that Act, either generally or in relation to specified land. 82The proceedings before Simpson J involved Bhushan seeking that certain orders made by Davies J on 23 February 2011 (the freezing orders) be set aside and further that there be a stay of execution of the Geneva Court of Appeal judgment which was registered pursuant to the Foreign Judgments Act 1991 (Cth) section 6 on 3 March 2011. Simpson J had evidence before her which in part has been replicated in the proceedings before me, in particular materials which dealt with the description and progress of the proceedings in Geneva and in India. 83Bhushan put forward several arguments. First that the Geneva proceedings and the Delhi proceedings had a substantial common substratum of fact. Whilst her Honour found that the commonality lay in the identity of the parties in both Geneva and in Delhi and that the issues concerned contracts for the sale of steel there was otherwise in fact no common substratum of fact. The second argument was that Severstal had made no effort to enforce its judgment in India where Bhushan had undoubted substantial assets. Again her Honour rejected that argument on the basis that a judgment creditor was able to seek to execute upon a judgment in a jurisdiction most convenient to it, a jurisdiction most closely connected to the litigation or any jurisdiction where a judgment debtor held assets. Her Honour found that it was entirely a matter for the choice for the judgment creditor. Lastly there was a complaint that Severstal had unreasonably refused to accept a bank guarantee offered by Bhushan. Her Honour did not regard Severstal's rejection given the state of the Delhi proceedings as unreasonable and declined in the exercise of her discretion to order a stay of execution. She also refused to vary the freezing order.

The Principles 84On the question of issue estoppel Dixon J made some pertinent remarks in Blair v Curran at 531 - 533: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation. The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. 85Barwick CJ in Ramsay v Pigram at 276 said: Longstanding authorities, in my opinion, warrant the statement that as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities or between a privy of each or between one of them and a privy of the other in each instance in the same interests or capacity. The issue thus determined as distinct from the course of action in relation to which it arose must have been identical in each case. Of its nature such an estoppel must be available to and operative in respect of each party; or, as it says, estoppels must be mutual. 86In Kaligowski v Metrobus at 373 the High Court (comprising Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said: In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2], Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were: "(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies." 87As Justice Fullagar said in Brewer v Brewer (1953) 88 CLR 1 at 15: Issue-estoppel applies only as to issues. There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue.

Discussion 88The application made before Simpson J necessarily involved her exercising a discretion. Her Honour was clearly unimpressed with each of the arguments put forward by Bhushan. Here it has not been advanced that somehow or other I should take into account the similarity between the Geneva and the Delhi proceedings. The whole focus of the current application is upon whether in relation to the Indian proceedings the criteria set out in r 25.14 UCPR have been met. That necessarily involves a careful consideration of the Indian proceedings and the evidentiary materials there advanced. The second argument which Simpson J rejected was the fact that Severstal had made no effort to register the Geneva judgment in India. That is again not advanced here but equally that fact cannot be gainsaid. Lastly her Honour did not accept the arguments advanced as to why Severstal should have accepted the bank guarantee. Again that matter does not arise here. 89In any event in the exercise of her discretion Simpson J did not find any of the arguments alone or in combination as sufficiently weighty to exercise a discretion in favour of a stay of the Geneva judgment pursuant to s 135(2)(c) CPA. The exercise before Simpson J was a wholly different exercise to the one which the Court is here concerned with in my view. The issues here are entirely different notwithstanding the evidentiary materials clearly overlap to some extent. 90The factors I need to address (as opposed to the evidence) are of course very different. 91I am of the view that there is no issue estoppel arising which prevents Bhushan from bringing these proceedings.

Abuse of Process 92As I understand the argument put on abuse of process it was really based upon the same assertion, namely that what was involved before me is a reagitation of the same matters before Simpson J. Whilst I agree some of the factual matters are similar, the issues now before the Court give rise to different considerations altogether. The question of the nature of the Indian proceedings from the point of view whether there is a good arguable case is but one important example. Simpson J did not give consideration likewise to other factors in UCPR 25.14. 93The onus of satisfying a Court that there is an abuse of process lies of course on the party alleging it. The onus is "a heavy one" to use the words of Scarman LJ in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 498. 94As Hunt CJ at Common Law said in Haines v ABC (1995) 43 NSWLR 404 at 414: The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former. 95Again I do not see that the issue which Simpson J had to determine in the proceedings then before her, namely whether the factors advanced by Bhushan together or alone required an exercise of discretion on her part that the execution of Severstal's judgment should be stayed, bear upon what the Court is involved with here. For similar reasons as above on the question of estoppel I do not regard these proceedings as amounting to an abuse of process.

The Exercise of Power under UCPR 25.14 96UCPR 25.14 (which was introduced in the Court on 5 June 2006) is similar in terms to Federal Court Rule, Order 25A, r 5, (which came into operation on 1 August 1979). 97I have not been referred to any cases that have directly considered the questions raised in this case in respect of UCPR 25.14. 98The approach adopted by judges in the Federal Court to identical or substantially identical provisions as are contained in UCPR 25.14 ought to guide how this Court should approach its task. As the High Court said in Farah Constructions Pty Ltd v Say -Dee Pty Ltd (2007) 230 CLR 89 at 151 - 152 [135]: Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principles apply in relation to non-statutory law. 99The phrase "good arguable case" is one which has its original source so it appears in an argument put by Sir Andrew Clark KC in the Privy Council in Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 at 875 which was acknowledged by Lord Simonds. (see pages 879 - 880). That of course was not a case involving a freezing order but one involving service outside the jurisdiction. But Denning MR called the phrase in aid in Rahman (Prince Abdul) v Abu-Taha [1980] 1 WLR 1268. 100In Ninemia Maritime Corp v Trave Schiffahrts GmbH & Co KG (the Niedersachsen) [1984] 1 All ER 398 at 404, Mustill J in discussing the notion as applicable in the context of a mareva order said: "In these circumstances, I consider that the right course is to adopt the test of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the Judge believes to have a better than 50% chance of success" 101I observe that the Court of Appeal ([1984] 1 All ER 413) upheld his Lordship's articulation of the test. Kerr LJ who wrote the judgment for the Court said at 415: "A 'good arguable case' is no doubt the minimum which the plaintiff must show in order to cross what the judge rightly described as the 'threshold' for the exercise of the jurisdiction. But at the end of the day the court must consider the evidence as a whole in deciding whether or not to exercise this statutory jurisdiction". 102In relation to the Federal Court rule equivalent, Edmonds J in Curtis v NID Pty Ltd [2010] FCA 1072 commented that the threshold is a very low one. He applied the test as articulated by Mustill J in Ninemia. He also observed at [6] of the decision that that test had been applied by Barrett J in Westpac Banking Corporation v McArthur [2007] NSWSC 1347 at [22] and also by White J in Errigal Ltd v Equatorial Mining Ltd [2006] NSWSC 953 at [26] and again by McDougall J in Pure Logistics v Scott [2007] NSWSC 595 at [12]. I should add to those the decision of Ward J in Hu v PS Securities Pty Ltd (as trustee of the Joseph Family Trust) and Another [2011] NSWSC 98 at [25] and [26]. 103It is clear from the test enunciated by Mustill J that his Lordship was sketching a spectrum of possible strengths. The analysis is to be arrived at by way of a preliminary appraisal of the plaintiffs case and by no means does a court nor indeed could a court engage prematurely in a trial of the action and in no way should it pre-empt the decision of the agreed tribunal. (See Ninemia at 404 per Mustill J).

The Evidence 104Both Bhushan and Severstal have filed evidence before the Court which not only involves expressions of opinion on the part of their respective lawyers as to the case but also pleadings and other materials which have been filed in the Indian proceedings. 105There is evidence from a Mr Sriharsh Bundela, Bhushan's lawyer in India who was admitted in 2003. He has appeared in all jurisdictions within India including the Supreme Court of India. He describes in some little detail the process that has been ongoing in India which covers the filing of evidence and the cross examination of various persons which is currently part heard. The proceedings are being heard before Mr J P Sharma, a former judge who now performs the role of what is described as a Local Commissioner. At the conclusion of the evidence the matter will go before a judge for final arguments who will then reserve the decision. It was anticipated that that process would be likely to proceed during February 2012. That has clearly not yet occurred. 106Mr Bundela says that following a reserved decision the unsuccessful party can within 30 days exercise a right of appeal. Mr Bundela estimates that such an appeal would get on within 3 - 6 months. Again the unsuccessful party can seek leave to appeal to the Supreme Court of India within 90 days of the appeal judgment but he expresses the view that leave would be exceptional. 107Mr Bundela expresses the view that in his opinion Bhushan has a good arguable case which does no more than call in aid established causes of action. He also points out that there is a rule of court (CPC, Order 7, rule 11) which permits defendants to assert that the plaintiff's case does not disclose any cause of action or in some way or other is barred by law. He points out that Severstal has not made such application but were it to have done so it would have failed. He also points out that if Severstal had sought to enforce the Swiss Judgment in India it would have been stayed pending the outcome of the proceedings in India. 108Bhushan also relies upon a number of affidavits from a Mr Manish Ranjan. Mr Ranjan was also admitted as a lawyer in 2003 and works in-house for Bhushan as part of its legal group. He is instructed to give the undertaking as to damages. 109Mr Ranjan describes in general terms the proceedings in India and contrasts them with the proceedings in Switzerland. He sets out the detail of the three steel orders which are the subject of the Indian proceedings and the various delivery dates of those shipments. He asserts, as is relatively clear from the pleadings file, that Bhushan makes a number of assertions in relation to the orders the subject of the proceedings. First that they were not of the quality contracted for and hence there was a misrepresentation in relation to the quality of the goods. As the goods had been paid for Severstal is unjustly enriched. In any event an estoppel claim is made which it is suggested prevents Severstal from relying upon the claims procedure otherwise contained in the terms of the contract. Further he points out that Bhushan pleads an implied term (contrary to the claims procedure) by which Bhushan as a matter of law it is asserted should have been given a reasonable time to inspect and test the shipments. 110It is clear from the material that Bhushan has made an application that Severstal provide security in relation to the Indian proceedings which application is opposed by Severstal. This matter is yet to be determined. 111It is also pointed out (which is not controversial) that Bhushan has no assets in Switzerland and more to the point that Severstal had never sought to enforce the Swiss judgment in India. 112Mr Ranjan makes clear that Bhushan, in the event that it is successful in India, will instruct its Australian solicitors to enforce the Indian judgment in Australia and execute against Severstal's assets. 113In further affidavit material Mr Ranjan asserts that Bhushan will contend that the steel was meant to be processed in the cold rolling unit at Bhushan's factory in order to sell it to the automotive manufacturers for use in making outer and inner panels of motor vehicles. He refers to the description in the orders and in particular to the surface quality asserted to being 95% guaranteed. He says that Bhushan will contend that this was a guarantee that the surface quality of the coils would be 95% free of surface defects. 114He then sets out the detail of examinations undertaken by an organisation called SGS which in broad terms expresses views in various reports that the 95% figure was not met in respect of a large number of random coils tested in respect of the three relevant orders that are concerned with the Indian proceedings. The SGS reports are before the Indian Court. 115He goes into further detail about the process and contends that Bhushan will prove that at the cold rolling mill, the cold rolling process is applied to hot rolled coils to produce steel for various processes. Bhushan will contend that Severstal knew that the steel would have had the cold rolling process applied to it by reason of its delivery destination (to the relevant plant) and its end use which it is asserted Severstal at all times knew. Bhushan will contend that this is clear from the contract specification namely that the steel be "IF Grade" which is commonly understood in the industry as required for the use in the automobile manufacturing process. It is further suggested that the process to which Bhushan subjected the coils would have had no impact on the properties of the hot rolled coils and could not have produced the defects which were ultimately identified by SGS. Until (Bhushan contends) the hot rolled coils had been processed the defects were otherwise invisible. 116Mr Ranjan refers to the claims procedure for visible and invisible defects and acknowledges that Severstal asserts that Bhushan's claims are made outside the relevant periods contained in the orders. Bhushan however will contend that such terms in all the circumstances were unreasonable and "commercially invalid" and hence the claims procedure was not binding upon Bhushan. 117Bhushan also relies upon the affidavit of a former justice of the Delhi Court, Usha Mehra who describes the Indian legal system as having a well established and independent judiciary. She remarks for example that the Commissioner who was taking the evidence can make observations as to demeanour. From the materials she has prepared it is clear that the proceedings are proceeding regularly. 118Severstal has filed material from a Mr Deo Sharma who is the lawyer appearing for them in the Indian proceedings. He has been in practice in India since 1992. Although he identifies similar steps that have been described by Mr Bundela as may well be taken in the process he opines that the time frame for the resolution of various matters will take much longer. For example in lieu of suggesting that the trial process may come to an end by February 2012 his view is that it may well not be concluded before October this year. He also expresses the view that the period to get an appeal on may well take longer and perhaps may not be concluded for up to ten to twelve months after the appeal is argued. If the matter were given leave to the Supreme Court of India he expresses the view that it may take a number of years before matters are concluded. 119He disagrees with Mr Bundela's expression of opinion that Bhushan has a good arguable case and indeed goes further and expresses the view that the Delhi Court is likely to dismiss Bhushan's suit. 120Mr Sharma contends that Severstal could have enforced and sought to execute upon its Swiss judgment in India and that had it attempted to do so it would have succeeded. I should say in passing this by no means explains why Severstal did not seek to do so but rather sought (as Simpson J believed was its right) to elect to do so in Australia. 121Mr Sharma points out again, which is tolerably clear from the terms of Severstal's defence, that Bhushan's proceedings are not maintainable and he asserts Bhushan has suppressed relevant material from the Delhi Court. It is further pointed out that Severstal seeks to assert that the matter has in fact been the subject of a determination, adversely to Bhushan, in Switzerland and hence for that reason the suit is not maintainable in India. 122Materials have also been filed on behalf of Severstal from a Mr Skrotzki, manager of Severstal who is resident in Switzerland. He not only gives evidence about the steel process in circumstances where it is clearly likely to give rise to a dispute about precisely what Bhushan did and how the defects were detected but also of course gives evidence (contained in a confidential exhibit) about Severstal's financial position in Switzerland. 123What is clear from all the evidence is that the Indian proceedings are well advanced and evidence has been both filed and cross examination has been partly completed of at least Bhushan's witnesses.

Discussion 124Severstal suggests that were a Court called upon to exercise jurisdiction to grant a freezing order in support of an accrued cause of action justiciable in a foreign Court the Court should do so with caution. This is especially so it is submitted in circumstances where the question of whether the applicant has a good arguable case is dependent on issues arising under foreign law. It is also submitted that Mr Bundela's evidence should not be regarded as independent and is incomplete. This may well be true but it is some evidence, although perhaps of limited weight. 125It is also submitted that Severstal has good defences to the claim advanced by Bhushan. In that regard reliance is again placed upon the affidavit of Mr Deo Sharma who acts for Severstal in the Delhi proceedings. He is really in the same position as Mr Bundela, namely the lawyer on the other side. Nonetheless he expresses the view that the Court is likely to dismiss Bhushan's suit. No reasons are really advanced, except to say there are good defences. 126It is of course submitted that as the claims were not advanced by Bhushan until 26 October 2005 (outside the claims period under the relevant contracts) that provides in itself a good defence. I observe only in passing that of course Bhushan relies upon representations made to it as giving rise to certain estoppels. But it is not for me at this stage of the analysis to engage in a preliminary appraisal of the case and in particular come to any view as to whether such evidence will be accepted. That would be quite inappropriate for obvious reasons. 127What the Court is confronted with simply are proceedings which are ongoing and part heard and where Severstal has made it seems no attempt to either have the proceedings struck out or have any preliminary point determined. Quite the contrary. Whilst Severstal will no doubt put all arguments it wishes to put before the Delhi Court that will as far as I am informed be done simultaneously with arguments on the merits. 128In relation to the defects period Bhushan in its pleadings in the Delhi proceedings effectively claims that for various reasons those time periods were impractical and/or unreasonable and therefore unenforceable. In that regard I was referred to a decision of the Supreme Court of India in the matter of Satyabrata Ghose v Mugneeram Bangur & Co and Anor [1954] SCR 310 where on page 317, Merkherjea J discusses the principles relating to the impossibility of contractual performance under chapter IV of the Indian Contract Act and which arguably provides an answer to the claims procedure provisions. In that regard, his Honour noted: Section 56 occurs in Chapter IV of the Indian Contract Act which relates to performance of contracts and it purports to deal with one class of circumstances under which performance of a contract is excused or dispensed with on the ground of the contract being void. The section stands as follows: "An agreement to do an act impossible in itself is void. A contract to do an act which after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise." The first paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word "impossible" has-not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do 129Severstal on the other hand as I have observed says amongst other things that the SGS reports relate to cold rolled steel coils and not hot rolled steel rolls as supplied. As Dr Bell pointed out, there are a number of answers to this, one of which is the estoppel/misrepresentation case which is clearly open on the facts. Assurances were it is asserted, made about rectification of the defects and relied upon to Bhushan's detriment. 130Bhushan's case will have to involve the Indian Court deciding who to accept in a number of areas of conflicting testimony. At the moment it has available to it a number of witnesses who will give evidence as to various assurances provided to it especially in late January 2005 by representatives of Severstal. Severstal will contest that evidence. 131Although Severstal will assert the claims procedure provides a defence to Bhushan's case, Bhushan not only has the benefit of the estoppel argument but the arguable benefit of a decision of the Supreme Court of India. If it can persuade the Court about the nature of the defects and the impracticability or unreasonableness in complaining within the specified time it clearly stands a prospect of success. On any view of the facts as I understand them I consider it can be comfortably said that its case is "more than barely capable of serious argument". There of course is evidence of Mr Bundela but to a large extent it is rebutted by Mr Sharma. However the fact that Severstal has not attempted to stop the case in its tracks carries in my mind some force either because it has no particular faith in any of his preliminary arguments or considers on balance a court would be unlikely to entertain such an argument as has been asserted by Mr Bundela. I consider consistent with the authorities Bhushan has satisfied the threshold of a "good arguable case".

Sufficient Prospects of a Judgment 132UCPR 25.14(3)(a) requires Bhushan to establish that there is sufficient prospects that the Delhi High Court will give judgment in its favour. Further it has to establish that there is sufficient prospect that the judgment will be registered or enforced in New South Wales. (25.14(3)(b)). 133It is submitted by Bhushan that 25.14(3)(a) does not relate to the strength or quality of the case in the proceedings but rather to the prospect of an actual judgment materialising. UCPR 25.14 can be invoked when a cause of action has not accrued, indeed the cause of action might only be prospective. It can also be called in aid whether the proceedings that are prospective are to occur domestically or internationally. Here of course proceedings have been commenced, are part heard, some evidence has been taken and the matter is ongoing. There is no reason to doubt that the Delhi Court will not indeed deliver judgment at some point which will (subject to appeal) bind the parties. The process has been regularly commenced and is proceeding in a manner this Court can clearly identify with. The adversarial system is engaged and there are rights of appeal. 134The analysis in relation to UCPR 25.14(3)(a) does not require me to decide that Bhushan will succeed and obtain a judgment but only that there are sufficient prospects that it will. On the materials I consider I am able to find that there are sufficient prospects it will do so and that it will show that it has suffered loss. The loss of course will have to be computed on the basis perhaps that some of the product was used which involved Bhushan obtaining less commercial value by utilising those goods than it might otherwise have done if the goods were of the required specification. But its loss has already been specified in the pleadings. 135In Ritchies 'Uniform Civil Procedure NSW' at 7386.12 [25.14.5], the authors note 'sufficient prospect of success' has been used in the sense of "good arguable case." The authors therefore imply that ss (3) and (4) of rule 25.14 apply a similar threshold to both legal and factual matters of the foreign cause of action: The reference to "sufficient prospect" in r 25.14(3) suggests that the "good arguable case" expression has been used in that sense in the present rule. This standard is consistent with the approach taken in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 408; 162 ALR 294; [1999] HCA 18; BC9902073 ("a reasonably arguable case on legal as well as factual matters"). 136The authors also note that the approach to be taken in relation to the discretionary considerations is similar to the approach taken in the exercise of other analogous discretionary powers, such as leave to proceed under r 11.4 and summary judgment under r 13.1 of the UCPR and reference is made to Agar v Hyde (2000) 201 CLR 552. 137In Agar v Hyde the High Court comprising Gaudron, McHugh, Gummow and Hayne JJ noted that in applying the discretionary consideration of "insufficient prospects of success" the Court does not undertake an assessment of the case on its merits, nor does the Court predict the outcome of the case, at [58] - [60]: 58. First, and most fundamentally, what is the criterion which is to be applied? Are proceedings to be terminated upon a prediction (on what almost invariably will be less evidence and argument than would be available at trial) of the "likely" or "probable" outcome of the proceeding? That cannot be so. It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities. And if it is not to be enough to persuade the court that it is more probable than not that the case against a defendant will fail, and some higher test (less than that now applied in applications for summary judgment) is to be applied, how is that test to be described? The attachment of intensifying epithets, such as "very" or "highly", offers little useful guidance for those judicial officers who would have to apply the test and who would have to do so, often enough, in a busy practice list. Such a test would be unworkable. 59. Secondly, as the present proceedings show, the application of some different, and lower, test in favour of overseas defendants would lead to unacceptable results. It would mean that proceedings must continue to trial against those defendants who happen to have been served with the originating process within the jurisdiction, but can be brought to a summary end by those who are served overseas even where the claims against the local and overseas defendants are identical. 60. For these reasons, the same test should be applied in deciding whether originating process served outside Australia makes claims which have such poor prospects of success that the proceeding should not go to trial as is applied in an application for summary judgment by a defendant served locally. 138In Arena Management Pty Ltd v Campbell Street Theatre Pty Ltd (No 2) [2010] NSWSC 1230 Palmer J having previously dismissed the plaintiffs originating process was called to determine the question of costs. His Honour queried whether "a prudent liquidator, with the benefit of commercial common sense and experience" ... had a sufficient prospect of success to justify (bringing the proceedings) (at [24]) his Honour noted at [25]: What is a "sufficient prospect" in the context of this question does not mean only "fairly arguable" - that is a low threshold to surmount if one is resisting an application for summary dismissal of proceedings. However, a liquidator, like a trustee, is dealing with other people's money and he or she must look at the ultimate result of the proceedings, not merely whether it will survive an application for summary dismissal. 139The decision of Palmer J was the subject of an appeal in the Court of Appeal judgment Joubert v Campbell Street Theatre Pty Ltd (In liquidation) [2011] NSWCA 302. Their Honours did not appear to disagree with his Honour's articulation of the test but rather his Honour's application to the facts of the case, in allowing the appeal. 140In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, the High Court considered an appeal from orders by Palmer J in response to a summons for judicial advice. Palmer J was asked to reach a view as to whether Counsel opinion demonstrated there were sufficient prospects of success to warrant an association to defend proceedings in a case. The High Court approved the approach of Palmer J when the judge did not use the term "sufficient prospects of success" in apposition to a formed and expressed opinion on the strength of the case to be weighed in balance. The High Court noted the submission that Palmer J should have formed a view on the strength of the case was hypercritical. In such an assessment, the judge may form a tentative view of strength, but the assessment is primarily a factual inquiry. The High Court approved the approach of Palmer J when the judge noted the opinion must address the facts necessary to support the legal conclusions reached and demonstrate that the propositions of law relied upon are properly arguable. 141The High Court approved Palmer J's finding that such a judgment is founded on considerations of the nature of the case and the issue raised, the amounts involved, including likely costs, whether costs are proportionate to the issues, consequences of litigation and in the case of a charitable trust, any relevant public interest factors. (at 119 [162]) 142The High Court confirmed Palmer J appropriately distinguished the question of whether propositions were properly arguable from the question of whether there were sufficient prospects. 143In Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 Lindgren J considered an application for an extension of time for the filing and serving of an application for leave to appeal from an interlocutory judgment. His Honour noted at [20] that the application for leave must have such prospects of success as to render the extension of time more than an exercise in futility: The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400), in principle the question on an application for an extension of time is whether this test has sufficient prospects of being satisfied, to warrant granting the extension. In practice, the debate and treatment of the "arguable error" question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself. 144On the materials before the Court, having found a good arguable case in accordance with Mustill J's formulation it is inexorable that a court would conclude that Bhushan has a sufficient prospect of obtaining a judgment in its favour. I consider the better view is that a court should not and cannot embark upon a premature trial but a preliminary appraisal only. Agar ([58] - [60]). I do not consider that the cases concerning trustees or liquidators are apposite and I agree with the authors of Ritchie as to the nature of the applicable test.

Sufficient prospects of enforcement of the judgment 145It is also necessary for Bhushan to satisfy the Court there is sufficient prospects that any judgment obtained in the Indian proceedings will be registered in or enforced by the Court (UCPR 25.14(3)(b)). India is of course not a country in respect of which part 2 of the Foreign Judgments Act applies and here such a judgment will be enforced or not pursuant to the common law. 146The principles governing the enforcement of judgments are at common law well known. In order to entitle a foreign judgment to recognition at common law, four conditions must be satisfied (Davies, Bell and Brereton, 'Nygh's Conflict of Laws in Australia' (8th ed. 2010) ch 40, (see [40.2] in particular)): (a)The foreign court must have exercised a jurisdiction that Australian courts recognise (b)The foreign judgment must be final and conclusive (c)There must be an identity of the parties; and (d)If based on a judgment in personam the judgment must be for a fixed debt 147These criteria derive from a range of cases at common law and were approved for example by the Full Court of the Supreme Court of South Australia in Benefit Strategies Group Inc v Prider (2005) 91 SASR 544. In Benefit Strategies, Bleby J (with Vandstone and Anderson JJ agreeing) noted with approval the referral of the trial judge to "the four well-established common law requirements for the recognition and enforcement of foreign judgments in personam," (at 552 [18]). 148The forum will recognise the foreign court has exercised jurisdiction if one of two conditions are satisfied: (1) the defendant was served with originating process while present or resident of the foreign jurisdiction, or (2) the defendant has voluntarily submitted to that jurisdiction. A party may voluntarily submit to the jurisdiction of the foreign court by either appearing as a party to the foreign proceedings (Norsemeter Holdings AS v Boele (No 1) [2002] NSWSC 370 per Einstein J at [15] see also Emanuel v Symon [1908] 1 KB 302 at 309 per Buckley LJ) or by agreeing in advance to accept the jurisdiction of the foreign court. 149Severstal of course has in fact submitted to the jurisdiction of the Indian Court and therefore that Court has jurisdiction in the international law sense of a kind that would make any judgment of the Indian Court enforceable in Australia at common law. See Nygh's (especially 40.12 - 40.17). 150Nygh's notes that the onus will be on the party seeking to rely upon the foreign judgment. That party need establish the foreign court had jurisdiction in the international sense, and that the foreign judgment was final and conclusive according to the law under which it was pronounced (at 807, [40.2]). 151Again the notion of sufficient prospects imposes in my opinion a similarly low threshold. The proceedings are ongoing and for example both Bhushan and Severstal will obviously be heard fully. In other words they will be accorded natural justice. There is no suggestion to the contrary. Each has a right of appeal and potentially subject to being granted leave, an appeal to the Supreme Court. Again I consider Bhushan has satisfied the requirement of s (3)(b).

Is there a danger that the prospective judgment will go unsatisfied 152This Court has always had the ability (if need be by granting a freezing order) to prevent an abuse or frustration of its process. Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 389 - 390 [12] and 393 [26], Jackson v Sterling Industries Ltd (1987) 162 CLR 612. 153In granting relief, it is not the case that relief be granted only if there is shown a positive intention to frustrate any judgment. Cardile at 394. 154As their Honours Gaudron, McHugh, Gummow and Callinan JJ said in Cardile at 405 - 406 [57] - [58]: 57. What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word "may", be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including "claims and expectancies", of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor. 58. It is that principle which we would apply to this case. Its application is a matter of law, although discretionary elements are involved. 155In Patterson v BTR Engineering (Aust) Ltd [1989] 18 NSWLR 319 at 325, Gleeson CJ said, again in the context of a mareva order: It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probably than not. 156Bare assertions that a defendant is likely to put any asset beyond the reach of the plaintiff is not enough in itself. Ninemia Maritime Corp v Trave Schiffahrts GmbH & Co KG (The Niedersachsen) [1984] 1 All ER 413 at 417 per Kerr LJ. 157As Meagher JA however said in Patterson at 326 - 327: Mr Heydon QC for the appellant submitted, and Mr Bainton QC for the respondent agreed, that the vast majority of defendants in litigation behave with propriety: in the "usual" case, therefore, the risk of improper dissipation of assets must be close to nil. In these circumstances, it cannot be the law that a plaintiff who seeks the extraordinary relief of a Mareva injunction need do no more than demonstrate a risk slightly higher than nil. What degree of proof is, then, required? Different judges have decided it in different ways. Without wishing to drown in a sea of semantics, I should have thought that the plaintiff is required to prove, on a balance of probabilities, that there is a real risk of the dissipation of assets. Unhappily for the appellant, in the present case the respondent proved just that 158Justice Kenny in the Federal Court in Deputy Commissioner of Taxation v Hau Wang Bank Berhad and Others (2010) 80 ATR 449 at 453, approved a test that requires a plaintiff to establish "a sufficient likelihood of risk which in the circumstances of a particular case justifies, an asset presentation order", specifically adopting a decision of Justice Keifel in Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd and Another (2005) FCA 226 at [14]. 159As Staughton LJ remarked in Republic of Haiti v Duvalier [1990] 1 QB 202 at 214: The law on this topic has developed in recent years; and in particular a distinction has emerged between pre-judgment and post-judgment restraint. Our courts are more willing to restrain a defendant from dealing with his assets after, than before, judgment has been given against him. (In passing, I would say that an injunction granted after judgment should normally, in my view, be of limited duration; the plaintiff should be encouraged to proceed with proper methods of execution; perpetual injunctions restraining a defendant from dealing with his assets until the crack of doom are undesirable.) This, of course, is a pre-judgment case. 160It is understandable why greater latitude would arguably apply in a pre-judgment case. It follows especially if proceedings have not been commenced the restraint might be required for a significant period of time. The length of any restraint of course may be influenced by a number of factors, the strength of the case being one. Commercial inconvenience or hardship another. The conduct of the parties and the history of the litigation yet another. As the High Court pointed out in Cardile (409, [70]), a court would, consistent with general principle, grant the minimum relief necessary to do justice between the parties and should specify the circumstances in which the order will cease to operate. 161As Campbell J (as he then was) said in Davis v Turning Properties [2005] NSWSC 742 at [35]: The administration of justice in New South Wales is not confined to the orderly disposition of litigation which is begun here, tried here and ends here. In circumstances where international commerce and international monetary transactions are a daily reality, and where money can be transferred overseas with sometimes as little as a click on a computer mouse, the administration of justice in this State includes the enforcement in this State of rights established elsewhere. As well, the ordinary course of administration of justice has long included a court making certain of its remedies available in aid of proceedings in another court - the old equitable remedies of a Bill of discovery, a Bill to perpetuate testimony, and a Bill to take testimony de bene esse pending a suit (Story, Commentaries on Equity Jurisprudence 13th ed 1886 para [1480] ff) provide examples of remedies being available in Chancery in aid of proceedings in another court before the other court has heard a suit. After another court has heard and decided a suit, the title of a foreign-appointed administrator of an insolvent estate to movables is recognised in Australia under the general law (Australian Mutual Provident Society v Gregory (1908) 5 CLR 615), and can provide a sufficient basis for an appointment of a receiver of immoveables within the jurisdiction (Re Kooperman (1928) B & C R 49). 162To exercise this jurisdiction the Court must be satisfied that there is a danger that the prospective judgment will be wholly or partly unsatisfied because assets might be removed from Australia or dealt with or diminished in value. 163Severstal submits that Bhushan's case amounts to no more than a bare assertion. Severstal submits further that there is no danger as a matter of reality. Severstal says that it has never shown any unwillingness to pay any judgment against it in the Indian proceedings. It also submits that if Bhushan needs to enforce the judgment outside India there is evidence that it would be able to do so in Switzerland. 164Severstal relies upon Frigo v Culhaci [1998] NSWCA 88. This matter involved an appeal from a District Court judge who had granted a mareva order. The Court comprising Mason P, Sheller JA and Sheppard AJA relied upon an earlier decision of Patterson. Patterson like Frigo was a case involving a Mareva order where of course the plaintiff at that time of the development of the relevant jurisprudence needed to establish a prima facie cause of action against the defendant. That is to be contrasted with the present rule. In any event, that part of Frigo which is relied upon by Severstal is what the Court said at 8 as follows: A plaintiff must establish by evidence and not assertion that there is a real danger that by reason of the defendant absconding or removing assets out of the jurisdiction or disposing of assets within the jurisdiction the plaintiff will not be able to have the judgment satisfied if successful in the proceedings. There has been much debate as to the precise degree of risk which must be shown: See generally Patterson. What is clear is that mere assertions that the defendant is likely to put assets beyond the plaintiffs reach will not be enough. 165There is also no doubt that the purpose of such an order is not to require a defendant to provide security as a condition of being allowed to defend the action against it. Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625. 166Severstal relies upon the affidavit of Mr Mumenthaler, a Swiss lawyer who represents Severstal in Switzerland. He sets out the position in relation to the enforcement of foreign judgments in Switzerland. The position in Switzerland is governed by the Swiss Federal Act on International Private Law. Article 25(2)(b) provides that a decision can only be recognised and enforced in Switzerland if it is final and binding that is one that cannot be changed or annulled by a Court of Appeal. The grounds of refusal are apparently regulated exclusively by article 27. He expresses the view that an Indian judgment could be recognised in Switzerland if it complies with the various prerequisites. He of course says nothing about what attitude Severstal would take were Bhushan to attempt to register an Indian judgment in Switzerland. Pursuant to article 27, one of the grounds in which, as he points out, a Swiss Court may refuse to register the Indian judgment is if the proceeding involves the same parties and the same subject matter and was first brought in Switzerland or adjudicated in Switzerland. (See Mumenthaler, 28 October 2011 [13]). 167Severstal also relies upon the affidavit of Mr Withold Skrotzki who was the manager of Severstal Export who deposes to the fact that Severstal is based in Switzerland and carries on business as a trader and exporter of Russian steel. Mr Skrotzki also asserts that Severstal sells approximately 3 million metric tonnes of steel per year and has a turnover of approximately USD$1.5 - 2 billion per year. In a further affidavit of his of 30 November 2011 and in particular in a confidential exhibit he deposes to the substantial assets in Switzerland. 168Bhushan suggested that Severstal's financial status in Switzerland was problematical. There is no doubt it has no assets in India. The position in Switzerland however, although initially on the evidence was somewhat ambiguous, was I consider sufficiently exposed by a late filed affidavit of Mr Skrotzki of 30 November 2011. That affidavit contains a confidential exhibit. There are a number of matters disclosed therein that may raise some further questions but as a whole in my mind it exposes Severstal as having substantial assets of various kinds in Switzerland. That of course is not an end of the matter. 169In his affidavit evidence filed on behalf of Bhushan Mr Ranjan (affidavit of 12 October 2011) says that as part of the Delhi proceedings Bhushan has sought an order requiring Severstal to provide security sufficient to cover any judgment. Severstal has refused to provide such security and the matter is to be determined by the Court in Delhi in due course. He further asserts that Severstal does not have any assets in India. If successful in India and Severstal fails to pay any judgment ultimately determined against it, he deposes that Bhushan would instruct his current solicitors to have the Delhi judgment recognised in Australia and executed upon Severstal's assets in Australia. He further deposes that there is no treaty or agreement between India and Switzerland concerning the recognition and enforcement of Indian judgments. He also expresses his concern that if Bhushan is awarded a significant judgment in its favour in Delhi there is considerable uncertainty about Bhushan's ability to enforce the judgment. In particular he expresses his concerns that Severstal may seek to remove its asset from Australia unless otherwise restrained. 170Mr Ranjan was cross examined, if I may so mildly on his assertions concerning his fears about enforcement against Severstal as follows: Q: You say in your affidavit that you are fearful that Severstal would not be in a position to pay any judgment obtained against Bhushan Steel? A: That is correct. Q: Obtained by Bhushan Steel in the Indian proceedings? A: That is correct. Q: Can I put it out the opposite proposition; that Severstal would be in a position to pay any such judgment? A: Not to my knowledge, No. 171As a passing observation I should remark that what is plainly apparent in these proceedings and indeed all of the other proceedings somewhat vividly described in the materials before this Court is that for some years now the respective parties had been feuding around the world. They are both companies of some substance but each in turn has sought to invoke by legitimate means strategies designed to succeed in the litigation arena. At the moment the feud is hard fought and I am entitled to infer that each side as I have said would take every legitimate course open to it. What may have commenced as a harmonious and hoped for long-term commercial relationship has soured many years ago, and it seems commercial resolution is off the agenda and expensive ongoing disputation the current strategy. 172There is evidence, which I accept, that Bhushan intends to enforce the Indian judgment if it is ultimately successful here in Australia. The enforcement will be governed by common law principles. There are assets in Australia. As I have said, there are no assets of Severstal in India although there is evidence of substantial assets in Switzerland. Bhushan in my view however is entitled, as was Severstal, to seek to enforce any judgment it ultimately obtains in whichever jurisdiction it can legitimately do so. Merely because Severstal has assets in Switzerland does not require Bhushan in the event of it being successful in proceeding there. 173In Switzerland it appears that a ground for a Swiss Court to refuse to recognise a foreign judgment is that it (the foreign proceeding) was "a proceeding involving the same parties, the same subject matter was first brought in Switzerland or adjudicated in Switzerland". Severstal in its defence in India argues that the proceedings are not maintainable there because they are indeed "between the same parties, regarding contracts having the same subject matter". Arguably Severstal would argue, consistent with the stance in India that in the event that Bhushan sought to enforce a judgment in Switzerland the matter had already been determined. It would, I can infer, invoke the operation of article 27. I am entitled to infer that it would indeed pursue that strategy consistent with its stance in India especially when there is no suggestion it would not take that course. This in my opinion is open not as mere speculation but a reasonable inference. Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222 et seq, per Mahoney JA. 174Severstal clearly does have assets in Australia and there is no evidence that for the moneys to remain in an interest bearing account would cause any hardship to Severstal or affect in any relevant way the running of its business otherwise. 175Unless restrained, in my opinion on the evidence, it is reasonably open to infer that Severstal would remove the asset from this jurisdiction. There is clearly a real risk that it will do so. It has no reason to keep the asset here. By that I do not mean that it would do anything that was illegitimate, quite the contrary, but it is in no mood to cooperate with Bhushan for obvious reasons. An intention legitimately to remove assets from a jurisdiction is no bar to relief. Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 53 per Young CJ. In particular I have had regard to the way Severstal has conducted this litigation all over the world. It has been relentless, single minded and unforgiving. The same can be said of Bhushan. 176In this case it is clear that a judgment in Bhushan's favour cannot be enforced in India but if judgment is obtained there are sufficient prospects of enforcement in Australia. Australia is a perfectly appropriate jurisdiction for that purpose and Bhushan is entitled to exercise its freedom of choice in that regard. I fail to see what real prejudice flows to Severstal if a freezing order were to be continued. Whilst there are competing estimates about how much longer the Indian proceedings may take, it is reasonable to assume that it is likely they will conclude sometime in the course of this year (at first instance at least). Severstal would not be prevented if there was a material change in circumstances from applying to have the order varied or dissolved. 177I consider that Severstal should initially be restrained until judgment is given at first instance in India. As I have said, that, on any of the estimates is likely to occur this calendar year. Upon the delivery of judgment in those proceedings the matter can be reconsidered. 178In all of the circumstances I am of the view that it is appropriate to make the orders sought but with the qualification referred to in paragraph [177] and I would invite short minutes be prepared accordingly. 179I would also invite the parties to have the matter relisted so that the question of costs can be determined.

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