Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd

REASONS FOR JUDGMENT 1 The applicant commenced this proceeding on 28 March 2013. In its Originating Application, the applicant sought the following relief: 1. An order pursuant to s 8(3) of the International Arbitration Act 1974 that the plaintiff be granted leave to enforce the arbitral award made on 15 February 2012 by the China International Economic and Trade Arbitration Commission Shanghai Sub-Commission at Shanghai China and published and notified to the parties that day. 2. An order that judgment be entered against the Defendant for the sum of: (a) USD$634,666.00 (b) RMB¥311,305, and (c) interest on the amount in (a) above from 14 October 2010 to the date of judgment at the rate of 0.1% per day ie. USD$643.67 per day, and (d) costs. 2 The substantive relief sought by the applicant is the enforcement of an arbitral award made by China International Economic and Trade Arbitration Commission (CIETAC) Shanghai Sub-Commission on 15 February 2012 (the award). The applicant is the award creditor under the award. The respondent is the award debtor under the award. 3 The applicant's claim for final relief is supported by the affidavit of Gang Sun affirmed on 28 March 2013. 4 I am satisfied that the applicant's Originating Application and the affidavit of Gang Sun were served upon the respondent and came to its notice some time between 28 March 2013 and 9 April 2013. 5 On 5 April 2013, by resolution of the sole shareholder of the respondent (Source Co Limited) passed on that day, Mark William Pearce and Michael Dullaway were jointly and severally appointed as liquidators of the respondent for the purpose of winding up the respondent. Source Co Limited did not pass a separate resolution that the respondent be wound up voluntarily pursuant to s 491(1) of the Corporations Act 2001 (Cth) (the Corporations Act) but such a resolution is implicit in the resolution which that corporation did pass on 5 April 2013. I will proceed upon the basis that, on 5 April 2013, the respondent was wound up voluntarily pursuant to s 491(1) of the Corporations Act by resolution of its sole shareholder, Source Co Limited. However, there was no evidence before me as to whether, prior to 5 April 2013, the directors of the respondent, or a majority of them, made a declaration of solvency pursuant to s 494 of the Corporations Act. 6 On 9 April 2013, the day before the first return of the proceeding before the Court, Mr Pearce transmitted by facsimile transmission to the solicitors for the applicant and to the Registry of the Court a letter dated the same day. Omitting formal parts, that letter is in the following terms: EP SOLAR PTY LTD (IN LIQUIDATION) A.C.N. 138 556 304 ("the Company") FEDERAL COURT OF AUSTRALIA CLAIM NSD 549/2013 ("the Proceeding") On 5 April 2013, Michael Dullaway and I, Mark William Pearce were appointed as joint and several Liquidators of the Company by virtue of a resolution of the Company's sole member under Section 490 of the Corporations Act 2001 (Cth) ("the Act"). I have enclosed a copy of the Resolution of Sole Member for Voluntary Winding Up. I note that you act for Eopply New Energy Technology Co Ltd in an application which it has commenced against the Company. I advise as follows:- 1. Pursuant to Section 500(2) of the Act "no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes." 2. I do not intend to take any steps in relation to the Proceeding or instruct solicitors to appear on my behalf at the forthcoming directions hearing in the Proceeding. 3. Whilst I have not been provided with satisfactory material to consider your client's claim in the Proceeding, I do not oppose your client's claim, nor do I oppose leave being granted to it to proceed with its claim under Section 500(2) of the Act. 4. Your client's claim against the company ranks as a provable debt in the liquidation. In this regard I have enclosed a Proof of Debt form which your client should complete and return to me in order to formally lodge its claim in the liquidation. I am currently conducting investigations into the Company's affairs and the prospects of any recovery actions being pursued in the liquidation. In this regard, I will write to you further in due course (or directly to your client, should you instruct me to do so) and provide an update on the conduct of the winding up of the Company. I will also issue an initial Report to Creditors and convene a meeting of creditors in due course as required under the Act. Would you please advise whether you request that I issue further correspondence to you, or directly to your client. If you wish for me to issue further correspondence directly to your client, please advise your client's contact details, including e-mail address. Should you have any queries please don't hesitate to contact either Michael Dullaway or myself. 7 The matter was first returned before the Court on 10 April 2013. On that occasion, the applicant was represented by Counsel. Consistent with the liquidators' letter extracted at [6] above, there was no appearance either by or on behalf of the respondent or its liquidators. In those circumstances, I proceeded to deal with the applicant's claim for final relief on that day in the absence of the respondent. 8 On 10 April 2013, the applicant sought the following relief: The COURT 1. Pursuant to s.500(2) of the Corporations Act, grants leave to the Applicant to proceed with the Originating Application herein. 2. Pursuant to s.8(3) of the International Arbitration Act, grants leave to the Applicant to enforce the award identified in prayer 1 of the Originating Application herein as if it were a judgment of this Court. 3. Gives judgment for the Applicant against the Respondent for the sum of (1) USD$1,219,118.30 (inclusive of interest to 10 April 2013 of USD$584,452.36), and (2) RMB¥311,305, or the Australian Dollar equivalent at the time of payment. 4. The Respondent is to pay the Applicant its costs of the proceedings. 9 There is no longer any need for an award creditor/applicant to seek leave to enforce a foreign award. Order 2 is, therefore, unnecessary. 10 The amount of RMB¥311,305 claimed by the applicant comprises two amounts: (a) RMB¥140,000, being legal costs awarded by the arbitrators as part of the award; and (b) RMB¥171,305, being the amount which the applicant paid to the arbitrators as their fees for conducting the arbitration. 11 These Reasons for Judgment determine all of the applicant's claims for relief.