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[2025] NSWSC 960
Supreme Court of NSW
2025-08-22
Hammerschlag CJ in Eq
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: China Civil Engineering Construction Corporation South Pacific (Fiji) Ltd v Sinclair Brook Pty Ltd [2025] NSWSC 960
Hearing dates: 13 August 2025
Date of orders: 22 August 2025
Decision date: 22 August 2025
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision: Plaintiff’s application for amendment of its Statement of Claim refused. Proceedings stayed.
Catchwords: COMMERCIAL ARBITRATION — International Arbitration Act 1974 (Cth) (the Act) ss 3, 7 — Arbitration Act 1965 (Fiji) ss 2, 4, 10, para 3 First Schedule — Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) Art IX(2) — PRIVATE INTERNATIONAL LAW — FORUM NON CONVENIENS — PRACTICE AND PROCEDURE —applications for stay of proceedings in this Court — application by plaintiff to amend its Statement of Claim and to join an additional defendant — the plaintiff and the third defendant companies both incorporated in Fiji, entered into a written Construct & Design Contract (the Contract) under which the third defendant retained the plaintiff to carry out design and building work for an office tower in Suva, Fiji — the plaintiff alleges that the first defendant company, incorporated in Australia, was appointed superintendent of works and acted as the third defendant’s agent and that the second defendant, an Australian citizen living in Fiji was employed by the first defendant and carried out the superintendent’s functions on its behalf — the Contract contains a submission to arbitration in Fiji before an arbitrator appointed by the President of the Fiji Association of Architects (the President) and is governed by the law of Fiji — under the Contract the parties submit to the non-exclusive jurisdiction of the Courts and Tribunals of Fiji — a dispute has arisen between the plaintiff and the third defendant in connection with the Contract and the third defendant gave notice terminating the Contract — the third defendant requested the President to nominate an arbitrator and he has done so but the arbitrator has to date neither accepted the appointment nor taken any step in the arbitration — the plaintiff commenced proceedings in the Court against all three defendants claiming breach of contract and breach of duty of care owed by each defendant to it — the defendants seek that the proceedings be stayed either under s 7(2) of the Act or on forum non conveniens grounds — the plaintiff resists a stay under the Act on several bases including that:
(a) the matters to be determined in the proceedings are not capable of settlement by arbitration, because on its proper construction the arbitration clause only covers disputes between the parties whilst the Contract is on foot and the Contract has been terminated,
(b) the arbitrator did not make an award within three months after entering on the reference and the arbitration has, therefore, “expired” because the Arbitration Act 1965 (Fiji) provides that an arbitrator must make an award within three months of entering on the reference,
(c) both ss 7(1)(a) and (d) only apply if the Convention country referred to in those subsections had that status on the date of the Contract, whereas Fiji became a Convention country on 4 December 2018 when its International Arbitration Act 2017 (Fiji) came into effect,
(d) the first and second defendants are not persons claiming through or under the third defendant within s 7(4) of the Act —
HELD — the issues to be determined in the proceedings are capable of settlement by arbitration and covered by the arbitration clause notwithstanding termination of the Contract — the arbitrator did not enter on the reference and if applicable, the three month period could be extended by the Fiji court — Fiji became a Convention country when it acceded to the Convention on 27 September 2010 — ss 7(1)(a) and (d) do not require the Convention country to have that status as at the date of the Contract but at the time the stay application is made — the first and second defendants are persons claiming through or under the third defendant — this Court is clearly an inappropriate forum for determination of the dispute between the plaintiff and all three of the defendants — the amendment of the Statement of Claim is futile because proceedings are stayed, but would be refused anyway because it is confusing, internally contradictory and inadequately articulated
Legislation Cited: International Arbitration Act 1974 (Cth) ss 3, 7
Arbitration Act 1965 (Fiji) ss 2, 4, 10, para 3 First Schedule
Constitution of the Republic of Fiji
International Arbitration Act 2017 (Fiji)
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) Art IX(2)
Cases Cited: Baker v Stephens (1867) LR 2 QB 523
Bakri Navigation Company Ltd v Owners of Ship “Golden Glory” Glorious Shipping SA (1991) 217 ALR 152
CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28; 98 ALJR 1096
Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192
Ferris v Plaister (1994) 34 NSWLR 474
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
Housing Authority v Top Symphony SDN BHD [2023] FJHC 301
In re Davis and Brown’s Arbitration (No 2) [1957] VR 127
Mt Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332; [1990] HCA 8
Voth v Manildra Flour Mill Proprietary Limited (1990) 171 CLR 539; [1990] HCA 55
Category: Principal judgment
Parties: China Civil Engineering Construction Corporation South Pacific (Fiji) Ltd (Plaintiff)
Sinclair Brook Pty Ltd (First Defendant)
Steven Tucker (Second Defendant)
Carpenters Properties Pte Limited (Third Defendant)
Representation: Counsel:
J Glissan KC / P Barry / J Charlton (Plaintiff)
A Shearer SC / CLW Street (First and Second Defendants)
IG Roberts SC (Third Defendant)
Solicitors:
Glissan & Associates Lawyers (Plaintiff)
Gilchrist Connell (First and Second Defendants)
Arch Law (Third Defendant)
File Number(s): 2024/00413888
Publication restriction: Nil
The plaintiff (China Civil) is a building and construction company incorporated in the Republic of Fiji (Fiji).
The first defendant (Sinclair) is incorporated in Australia. It provides construction management and building superintendent services.
The second defendant (Tucker) was employed by Sinclair. He was a director from 2 July 2018 until 25 July 2024. He currently resides in Fiji.
The third defendant (Carpenters) is incorporated in Fiji. It owns a building in Suva, Fiji, called the MHCC tower (the Building).
Sinclair Brook (Fiji) Pte Limited (Sinclair Fiji) is incorporated in Fiji. It was incorporated in 2017. Tucker is a director. As will appear later, China Civil wishes to join Sinclair Fiji as the fourth defendant by way of a proposed Amended Statement of Claim.
On 5 September 2017, Carpenters and China Civil entered into a written Formal Instrument of Agreement (the Formal Instrument) by which Carpenters as Principal, engaged China Civil as Contractor, to design and construct a new twelve storey commercial office tower over the existing Building. The Formal Instrument incorporates General Conditions in the form of amended Australian standard conditions for design and construct 4300-1995. I will refer to the Formal Instrument and the General Conditions collectively as the Contract.
References below to clauses are to clauses in the General Conditions unless otherwise stated or the context indicates differently.
Clause 13.7 of the Formal Instrument provides:
13.7 Jurisdiction
The Contract shall be governed by and construed in accordance with the laws for the time being in force in Fiji and the parties hereto irrevocably submit to the non-exclusive jurisdiction of the Courts and Tribunals of Fiji including any Courts having appellate jurisdiction.
Clause 23 read with annexure part A to the Contract makes provision for the appointment of a Superintendent. By para 5 of that annexure Sinclair, or its nominee as approved in writing by the Principal, was appointed to that role.
Clause 34 is headed Suspension of Works and makes provision for the Superintendent to direct the Contractor to suspend the progress of work.
Clause 44 deals, amongst others, with default by either party. It contains provisions for default notices and termination.
Clause 47 provides:
47 DISPUTE RESOLUTION
47.1 Notice of Dispute
If any difference, disagreement, Claim (including at law) or dispute (together called a ‘dispute’) arises, the dispute must be referred by notice in writing by either party to the other party for resolution. Such notice must give full particulars of the dispute, and identify the areas of difference.
Each of the parties will use their reasonable endeavours to co-operatively resolve a dispute arising in connection with the Contract.
Notwithstanding the existence of a dispute, the Principal and the Contractor must continue to perform the Contract and, subject to Clause 44, the Contractor shall continue with the work under the Contract and the Principal and the Contractor ill continue to comply with Clause 42.1
47.2 Further Steps Required Before Proceedings
Within 14 days of service of a notice of dispute, the parties shall confer at least once to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. If the dispute has not been resolved within 28 days of service of the notice of dispute, that dispute shall be and is hereby referred to Arbitration.
47.3 Arbitration
Arbitration shall be effected by an Arbitrator who shall be nominated by the President or Vice President of the Fiji Association of Architects or his/her nominee, acting on the request of any party to the dispute and the provisions of the Arbitration Act (Cap 38) (Fiji) shall apply.
Unless the parties agree in writing, any person agreed upon by the parties to resolve the dispute pursuant to Clause 47.2 shall not be appointed as an arbitrator, nor may that person be called as a witness by either party in any proceedings, other than for evidence that Clause 47.2 steps were attempted.
Notwithstanding Clause 42.8, the Arbitrator may award whatever interest the Arbitrator considers reasonable.
If one party has overpaid the other, whether pursuant to a Superintendent’s certificate or not and whether under a mistake of law or fact, the Arbitrator may order repayment together with interest.
The parties must pay the mediator’s remuneration in equal shares. Each party must pay its own costs of the mediation.
If the dispute is not resolved by the mediation process, either party may commence legal proceedings. [1]
47.4 Summary Relief
Nothing herein shall prejudice the right of a party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief in respect of a dispute under Clause 47 or any matter arising under the Contract.
On 1 October 2018, Carpenters, Sinclair Fiji and Sinclair entered into a written Consultants Agreement under which Carpenters appointed Sinclair Fiji to provide a range of building and project management services including superintending the construction process. Sinclair guaranteed Sinclair Fiji’s obligations to Carpenters under the Consultants Agreement.
Clause 7.11 of the Consultants Agreement provides:
7.11 Governing Law
(a) This Agreement is subject to the laws of Fiji.
(b) The parties to this Agreement submit themselves to the exclusive jurisdiction of the Courts of Fiji for all proceedings arising in connection with this Agreement which proceedings shall be issued in Fiji.
On 4 October 2024, Carpenters gave China Civil written “Notice of Dispute Pursuant to Clause 47”. Attached to the notice was a schedule detailing the dispute said to have arisen. The notice includes an assertion that the piling on the site was inadequate. In accordance with cl 47.2, the notice proposed a conference to resolve the dispute.
On 7 October 2024, China Civil acknowledged receipt of the notice and requested a different date for the proposed settlement conference (Carpenters acceded to the request).
On or about 7 October 2024, Carpenters gave China Civil written Notice of Default asserting breach by China Civil of the Contract by failing to perform properly its design obligations, failing to use material or standard of workmanship required by the Contract, failing to proceed with due expedition and without delay, and substantially departing from the Contractor’s program without reasonable cause or Superintendent approval. The notice required China Civil to show cause in writing by 4pm on 16 October 2024 why Carpenters should not exercise a right (including a right to terminate) referred to in cl 44.4.
On 16 October 2024, China Civil responded denying breach and asserting that no occasion for issuing a show cause notice had arisen.
On 17 October 2024, representatives of China Civil and Carpenters met to discuss resolution of the dispute. Resolution was not achieved.
On 28 October 2024, China Civil wrote to Carpenters and the Superintendent putting a proposal for resolution.
On 31 October 2024, Carpenters rejected the proposal, stating that it would now proceed to arbitration.
On 31 October 2024, China Civil gave its own written Notice of Dispute to Carpenters, asserting various breaches by Carpenters and the Superintendent. It maintained that because of their breaches it had suffered loss exceeding FJ$30 million.
On 4 November 2024, Carpenters wrote to the President of the Fiji Association of Architects (the President) requesting that he nominate an arbitrator to resolve the dispute between Carpenters and China Civil. Also on 4 November 2024, China Civil wrote to the President giving him notice that it disputed the referral to arbitration. It sought that he refrain from taking any steps in furtherance of Carpenters’ request.
On 6 November 2024, Carpenters served written notice on China Civil terminating the Contract with immediate effect.
Between that date and 13 January 2025, further correspondence passed between China Civil and Carpenters or their respective lawyers which it is not necessary to recount.
On 13 January 2025, the President nominated Justice Jiten Singh of Suva, Fiji, as arbitrator.
On 6 November 2024, China Civil sued out of this Court a Statement of Claim initiating these proceedings.
The Statement of Claim alleges that Sinclair breached a duty of care owed to China Civil including by “not preventing the manifestation of unnecessary risks” and in giving directions pursuant to the Contract. It alleges personal negligence on the part of Tucker of a duty of care “coterminous” with that owed by Sinclair. It alleges repudiation and wrongful termination of the Contract by Carpenters. It makes a claim headed “Detrimental Reliance”, alleging a false precontractual representation as to the integrity of the “construction platform”.
By Notice of Motion filed on 4 February 2025, Sinclair and Tucker move for an order pursuant to s 7(2) of the International Arbitration Act 1974 (Cth) that the proceedings be stayed and referred to arbitration, alternatively, that the proceedings be stayed on the basis of forum non conveniens.
Orally at the hearing, they sought a temporary stay in the further alternative. It is not necessary to deal with that application.
By Amended Notice of Motion filed on 17 February 2025, Carpenters moves for similar orders. Its motion also seeks an order that the Statement of Claim be struck out, but this was not addressed during argument.
By Notice of Motion filed on 16 May 2025, China Civil seeks leave to amend the Statement of Claim so as to join Sinclair Fiji as fourth defendant, and make a claim against it.
References in this judgment to the Act and to sections are, unless otherwise stated or the context indicates differently, references to the International Arbitration Act 1974 (Cth) and to sections of that Act.
Section 3 relevantly provides:
3 Interpretation
(1) In this Part, unless the contrary intention appears:
agreement in writing has the same meaning as in the Convention.
…
arbitration agreement means an agreement in writing of the kind referred to in sub‑article 1 of Article II of the Convention.
…
Convention means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty‑fourth meeting, a copy of the English text of which is set out in Schedule 1.
Convention country means a country (other than Australia) that is a Contracting State within the meaning of the Convention.
…
court means any court in Australia, including, but not limited to, the Federal Court of Australia and a court of a State or Territory.
…
(3) For the purposes of this Part, a body corporate shall be taken to be ordinarily resident in a country if, and only if, it is incorporated or has its principal place of business in that country.
…
Sections 7 and 14 are in Part II of the Act entitled “Enforcement of foreign arbitration agreements and awards”.
Section 7 provides:
7 Enforcement of foreign arbitration agreements
(1) Where:
(a) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a Convention country;
(b) the procedure in relation to arbitration under an arbitration agreement is governed, whether by virtue of the express terms of the agreement or otherwise, by the law of a country not being Australia or a Convention country, and a party to the agreement is Australia or a State or a person who was, at the time when the agreement was made, domiciled or ordinarily resident in Australia;
(c) a party to an arbitration agreement is the Government of a Convention country or of part of a Convention country or the Government of a territory of a Convention country, being a territory to which the Convention extends; or
(d) a party to an arbitration agreement is a person who was, at the time when the agreement was made, domiciled or ordinarily resident in a country that is a Convention country;
this section applies to the agreement.
(2) Subject to this Part, where:
(a) proceedings instituted by a party to an arbitration agreement to which this section applies against another party to the agreement are pending in a court; and
(b) the proceedings involve the determination of a matter that, in pursuance of the agreement, is capable of settlement by arbitration;
on the application of a party to the agreement, the court shall, by order, upon such conditions (if any) as it thinks fit, stay the proceedings or so much of the proceedings as involves the determination of that matter, as the case may be, and refer the parties to arbitration in respect of that matter.
(3) Where a court makes an order under subsection (2), it may, for the purpose of preserving the rights of the parties, make such interim or supplementary orders as it thinks fit in relation to any property that is the subject of the matter to which the first‑mentioned order relates.
(4) For the purposes of subsections (2) and (3), a reference to a party includes a reference to a person claiming through or under a party.
(5) A court shall not make an order under subsection (2) if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.
The application of this Part extends to agreements and awards made before the date fixed under subsection 2(2), including agreements and awards made before the day referred to in subsection 2(1).
The Arbitration Act 1965 (Fiji) Ordinance No. 18 of 1965 came into force on 10 June 1965.
Section 2 defines “submission” to mean “a written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not”.
Section 4 provides:
A submission, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the First Schedule in so far as such provisions are applicable to the reference under submission.
The time for making an award may from time to time be extended by order of the court, whether the time for making the award has expired or not.
The arbitrators shall make their award in writing within 3 months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may, from time to time, extend the time for making the award.
On 27 September 2010, Fiji acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the Convention), thereby becoming a Convention country.
On 4 December 2018, the International Arbitration Act 2017 (Fiji) came into force. Fiji adopted the UNCITRAL Model Law.
Under the first para of cl 47.1, any difference, disagreement, claim or dispute which arises between the parties must be referred for resolution. The second para requires the parties to endeavour to resolve a dispute arising in connection with the Contract. Although there are no such words of limitation in the first part of the paragraph, I proceed on the basis an arbitrable dispute must be one which arises in connection with the Contract. Such phrases are given wide operation: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 164.
An examination of the Statement of Claim reveals that the dispute which it seeks to resolve curially is one arising in connection with the Contract. It alleges breaches of the Contract and breaches of duty which owe their existence to the existence of the Contract.
If the procedure in relation to the arbitration contemplated by the Contract is governed by the law of Fiji, [2] or Carpenters or China Civil is a person who was at the time of the Contract domiciled in a country which was a Convention country, [3] then by s 7(2) the Court must stay the proceedings so far as they involve determination of a matter that in pursuance of the Contract is capable of settlement by arbitration.
China Civil argues that the requirements of s 7 are not met. What follows is an articulation of the propositions for which it contends, as best as I understood them.
First, it argues that the requirements of s 7(2)(b) are not met because the matters to be determined in the proceedings are not capable of settlement by arbitration in that the dispute encapsulated in the Statement of Claim does not come within the terms of cl 47 on its proper construction.
It argues that the irrevocable submission to the non-exclusive jurisdiction of the Courts and Tribunals of Fiji in cl 13.7 of the Formal Instrument has the effect that the parties agreed that the only forum for the resolution of any disputes was the Courts and Tribunals of Fiji, thereby displacing any operation of cl 47. It argues that not to give cl 13.7 of the Formal Instrument this field of operation means that it has no field of operation. It argues that, on its proper construction, cl 47 covers only disputes between the parties, whilst the Contract is on foot.
Each of these propositions is untenable.
Senior Counsel for China Civil did not identify the or any constructional choice which would take the present dispute outside the ambit of a “dispute arising in connection with” the Contract.
There is no tension between cl 13.7 of the Formal Instrument and cl 47. There is a submission to the non-exclusive jurisdiction of Fiji but not for the resolution of a dispute which is to be resolved by arbitration. Those Courts and Tribunals no doubt retain jurisdiction, for example, to enforce any award, to remove an arbitrator, to stay proceedings that need to go to arbitration and to do all those things that courts regularly do in connection with arbitrations. That jurisdiction’s role has nothing to do with the construction or ambit of cl 47.
And the question is, from what period do the three months run? The words of the section are somewhat ambiguous, but the only sound construction appears to me to be that the three months must date from the time the arbitrator actually enters upon the reference: not from the time that he merely takes upon himself the office of arbitrator by accepting the reference, but from the time he takes upon himself and exercises the functions of arbitrator.
Here, the arbitrator has done nothing in it. He has not even accepted appointment. China Civil objected to him taking any role. If there is a relevant three month period, it has not started.
It is perhaps worthy of observation that China Civil’s position that the arbitration agreement had no relevant effect, that the President acted off his own bat in nominating Justice Singh and that Justice Singh should not do anything in furtherance of the arbitration is at odds with its position that the three months period has expired. The notions of waiver and estoppel come to mind. In the precise context of the type of provision here under consideration in, In re Davis and Brown***’***s Arbitration (No 2) [1957] VR 127 at 133 Sholl J said:
But the parties may waive the provisions of the Act as to the time for the making of an award; and such waiver may be express or implied; see Halsbury (2nd ed.), Vol. 1, p. 656; Russell (12th ed.) (1931), pp. 358-361. Sometimes the matter is put in the cases as one of consent, and sometimes as involving an estoppel…
Paragraph 3 of the First Schedule enables the arbitrator to extend the time for the making of the award. There is a question as to whether the arbitrator can extend the period after its expiry: see In re Davis and Brown*’*s Arbitration at 132, but the Fiji Court can undoubtedly do so under s 10 of the Arbitration Act 1965 (Fiji).
In any event, Senior Counsel for China Civil accepted that even if the arbitration has “expired”, there could be another one. Hence, s 7(2) would still operate to require a stay even if the proposition had substance.
Third, China Civil argues that the dispute is not capable of settlement by arbitration because the Contract has been terminated and cl 47 is no longer on foot with the consequence that there is no longer a submission to arbitration.
This submission is without substance.
It runs counter to the well-established doctrine of separability of arbitration clauses: Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 at [219], [222] and [224]; Ferris v Plaister (1994) 34 NSWLR 474 at 484-7 and 495-6. [4] Fiji, itself, recognises the doctrine: Housing Authority v Top Symphony SDN BHD [2023] FJHC 301 at [37]-[42].
Reference was made by Senior Counsel for China Civil to the kompetenz-kompetenz doctrine [5] not applying in Fiji because nothing is said of it in the Arbitration Act 1965 (Fiji). How the occasion for the application of the doctrine arises here was not made clear, but in any event, the proposition is untenable. The separability doctrine applies. There was no evidence of the law of Fiji’s attitude to the doctrine. Accordingly, that country’s law on the doctrine is presumed to be the same as that of this State, which upholds it: Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 at [13]; CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28; 98 ALJR 1096 at [31].
Fourth, China Civil argues that the requirements of neither ss 7(1)(a) nor (d) are met because:
Fiji became a Convention country on 4 December 2018, when its International Arbitration Act 2017 (Fiji) came into effect because s 51 of the Constitution of the Republic of Fiji says that an international treaty or convention binds the State only after it has been approved by Parliament;
under both ss 7(1)(a) and (d) the Convention country must be a Convention country on the date of the Contract;
the Contract was entered into on 5 September 2017, that is after Fiji became a Convention country.
Although it is not necessary to deal with Carpenters’ forum non conveniens application, I will still do so because had I not stayed the proceedings under the International Arbitration Act 1974 (Cth), I would have stayed them on the forum non conveniens ground. I observe that Senior Counsel for China Civil did not address any oral submissions on forum non conveniens.
This Court is plainly an inappropriate forum for resolution of the dispute between Carpenters and China Civil because:
the substantive law of this forum does not apply to the dispute. The law of Fiji does;
neither China Civil nor Carpenters is present in this forum. Both are incorporated in Fiji and operate there;
none of the conduct complained of occurred here. It occurred exclusively in Fiji;
the physical subject matter of the dispute (ie the Building) is not in this forum, it is in Fiji. In a dispute of this type it is likely that the Building will need to be inspected by experts and the tribunal;
no damage was suffered in this jurisdiction. The damages allegedly suffered were suffered in Fiji;
no person who might be expected to give evidence was identified as being in this forum. Tucker and representatives of China Civil might be thought to be likely witnesses and they are not here; and
there was no suggestion that documents relevant to the dispute are here. Relevant documents are more likely to be in Fiji and compulsory production of documents processes in Fiji will be more easily facilitated there than here.
Sinclair and Tucker will respectively have the benefit of s 7(2) if it or he is a party claiming “through or under” a party to the arbitration agreement (ie the Contract) within s 7(4).
In Tanning Research Laboratories Inc v O*’*Brien (1990) 169 CLR 332; [1990] HCA 8 the High Court considered the meaning of that phrase as used in s 7(4). In a well-known passage, at 342 Brennan and Dawson JJ said:
The meaning of the phrase “through or under a party” must be ascertained not by reference to authority but by reference to the text and context of s. 7(4).
In the first place, as sub-s. (2) speaks of both parties to an arbitration agreement, a person who claims through or under a party may be either a person seeking to enforce or a person seeking to resist the enforcement of an alleged contractual right. The subject of the claim may be either a cause of action or a ground of defence. Next, the prepositions “through” and “under” convey the notion of a derivative cause of action or ground of defence, that is to say, a cause of action or ground of defence derived from the party. In other words, an essential element of the cause of action or defence must be or must have been vested in or exercisable by the party before the person claiming through or under the party can rely on the cause of action or ground of defence.
Section 7(2) of the Act is concerned with “proceedings [which] involve the determination of a matter … capable of settlement by arbitration”. Its operation is thus not confined to proceedings in which the parties seek the same relief as might have been sought in arbitration proceedings. Because s. 7(2) has this wider operation, the question whether a person is claiming through or under a party to the arbitration agreement is necessarily to be answered by reference to the subject matter in controversy rather than the formal nature of the proceedings or the precise legal character of the person initiating or defending the proceedings.
In Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 the majority affirmed the correctness of the approach taken in Tanning Research: see too, Mt Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [96].
Elements of China Civil’s respective substantive claims against Sinclair and Tucker are that:
Sinclair acted as Carpenters’ agent in doing things about which China Civil complains. Tucker was an employee of Sinclair and the person through whose human agency Sinclair’s acts complained of were done. In the case of Sinclair, there is an averment that when exercising its functions as Superintendent, it was acting as the agent of Carpenters. In the case of Tucker there is an averment that he was a project manager employed by Sinclair and had care and responsibility for making decisions in relation to the supervision, management and effective control of the performance of the Contract;
Sinclair owed China Civil a duty of care to take reasonable steps to prevent the occurrence of reasonably foreseeable risks of harm and to exercise care, skill and diligence to prevent the manifestation of unnecessary risks and it breached that duty of care (amongst others) in giving directions pursuant to the Contract;
Tucker owed a “personal duty” to China Civil coterminous with that owed by Sinclair and he breached it in the same way as Sinclair did;
Carpenters repudiated the Contract and wrongfully purported to terminate it; and
heads of loss and damage suffered by China Civil by the breaches complained of (as particularised in the Statement of Claim) include:
Termination of the Contract
Loss of income during suspension of work
Exposure to a claim of damages by Carpenters
It is readily apparent that Sinclair and Tucker have a direct interest in resisting China Civil’s claims that Carpenters did anything unlawful and that China Civil thereby suffered loss. They have a positive interest in showing that Carpenters validly terminated the Contract.
This demonstrates that each Sinclair and Tucker is a person claiming through or under Carpenters.
It follows that the proceedings against them must be stayed under s 7(2).
It is not necessary to deal with Sinclair and Tucker’s forum non conveniens application, but as with Carpenters, had I not stayed the proceedings under the Act I would have stayed them on forum non conveniens grounds. Senior Counsel for China Civil did not address any oral submissions on forum non conveniens.
As with the claim against Carpenters, this Court is plainly an inappropriate forum for resolution of the dispute between China Civil and Sinclair and Tucker.
Each factor which makes this Court an inappropriate forum for China Civil’s case against Carpenters, applies with equal force to its case against Sinclair and Tucker. In addition:
the claim against Sinclair and Tucker is bound up with and related to the claim against Carpenters, which will be heard by a foreign tribunal. Duplication of proceedings should be avoided. Both Sinclair and Tucker undertook to the Court that they would consent to the claims against them being arbitrable as if they were parties to the Contract if, within 28 days of this judgment, China Civil calls upon them in writing to do so. They are thus amenable to the jurisdiction of the arbitrator. There is no necessity for duplication of proceedings in Fiji; and
so far as it may be necessary to have regard in the proceedings to the terms or operation of the Consultants Agreement, that instrument is expressly governed by the law of Fiji.
There is one factor in favour of China Civil. Sinclair is not in Fiji but in Australia, but I interpolate that it appears at least possible that Sinclair Fiji and not Sinclair was the Superintendent. There is little, if anything, else in its favour. Had it succeeded in joining Sinclair Fiji there would have been an additional factor against it.
During the course of the hearing there was debate about the terms of the proposed Amended Statement of Claim.
The application for leave to amend fails. It is of no utility as the proceedings will not take place in this Court.
But additionally, the proposed amendment is confusing, internally contradictory and inadequately articulated. Some (but not all) of the shortcomings of the proposed amendment are described on the transcript. Had the stay applications not succeeded I would nevertheless have refused leave to amend in accordance with that instrument. I record that China Civil did not require any further elaboration of the shortcomings of its proposed pleading.
The plaintiff’s application for leave to amend is refused. Its Notice of Motion dated 16 May 2025 is dismissed.
Proceedings 2024/00413888 are stayed.
I provisionally order that the plaintiff is to pay the costs of each of the first defendant, the second defendant and the third defendant of the proceedings including each Notice of Motion dealt with in this judgment. This order will solidify seven days after the date of this judgment unless any party notifies the others and my Associate in writing that some other order is sought, specifies the order and provides a brief statement of the grounds for it, in which event the order will not take effect and I will make directions to deal with costs.
Exhibits are to be returned.
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The clause is infelicitously drafted. It refers to a mediation process and mediator’s remuneration, but it makes no provision for mediation. But nothing turns on this.
International Arbitration Act 1974 (Cth) s 7(1)(a).
International Arbitration Act 1974 (Cth) s 7(1)(d).
An arbitration agreement is distinct from the rest of the contract in which it is contained, which limits attacks upon its validity.
An arbitral tribunal is competent to rule on its own jurisdiction.
China Civil Engineering Construction Corporation South Pacific (Fiji) Ltd
Sinclair Brook Pty Ltd [2025] NSWSC 960
(1991) 217 ALR 152
(2006) 157 FCR 45
(1994) 34 NSWLR 474
(1996) 39 NSWLR 160
(2015) 256 CLR 104
(2019) 267 CLR 514
(1990) 169 CLR 332
(1990) 171 CLR 539
On 16 January 2025, China Civil’s solicitors wrote to the President and to Justice Singh. To the President they asserted that his decision to nominate an arbitrator could only be seen to be one made under his own initiative and that any furtherance of this course of action would result in legal action which may include joining him as a party to proceedings. From Justice Singh they demanded that no further action be taken by him and an undertaking to that effect. There is no evidence of any response to these missives.
Second, China Civil argues that the dispute is not capable of settlement by arbitration because the arbitrator did not make his award within three months after entering on the reference as required by para 3 of the First Schedule to the Arbitration Act 1965 (Fiji) and therefore, the arbitration has “expired”.
This proposition is untenable.
The concept of expiry of an arbitration is not one known to the law. The arbitrator did not enter the arbitration. Entering an arbitration is becoming seized of it. As early as Baker v Stephens (1867) LR 2 QB 523, in dealing with a provision indistinguishable from para 3 of the First Schedule, Cockburn CJ, with whom Blackburn J agreed, said:
Each of these propositions (except for when the Contract was entered into) is wrong.
Article IX(2) of the Convention provides “Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations”. Fiji acceded to the Convention on 27 September 2010, thereby becoming a Convention country under the International Arbitration Act 1974 (Cth). The Constitution of the Republic of Fiji has no role to play here. The Republic of Fiji is not a party to these proceedings or the Contract.
Neither s 7(1)(a) nor s 7(1)(d) requires the Convention country to have that status at the time of the Contract. The language of both provisions is, relevantly, in the present tense. The arbitration agreement is governed by the law of a Convention country. A party to it is domiciled in a country that is a Convention country. The relevant time for the Convention country to have that status is when the application is made: Bakri Navigation Company Ltd v Owners of Ship “Golden Glory” Glorious Shipping SA (1991) 217 ALR 152 at 167.
It follows that Carpenters is entitled to succeed. The proceedings against it must be stayed under s 7(2) of the Act.
Steps have already been taken to convene an arbitration in Fiji and there is no reason why that arbitration cannot now proceed. It is unnecessary to make an order referring the dispute to arbitration.