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[2026] NSWSC 274
General information, not legal advice.
Supreme Court of NSW
2026-03-26
Emmett J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: GOOD EARTH OILS PTY LTD v COLOSSUS FOOD PTY LTD [2026] NSWSC 274
Hearing dates: 3 March 2026
Date of orders: 26 March 2026
Decision date: 26 March 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) An order pursuant to s 35(1) of the Commercial Arbitration Act 2010 (NSW) enforcing the GTA Arbitration 397 Final Award.
(2) Judgment for the plaintiff against the defendant in the amount of $149,815.11.
(3) The defendant is to pay the plaintiff’s costs.
Catchwords: COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether the defendant agreed to arbitrate – whether award deals with dispute beyond the scope of agreement to arbitrate – whether procedural irregularity or unfairness discerned – whether enforcement contrary to public policy – no reason to resist enforcement.
COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether defendant unable to present case – whether defendant denied procedural fairness in arbitral proceedings – where defendant was notified of arbitral proceedings and actively participated – where defendant did not request oral hearing under arbitral rules – where defendant was notified of replacement of tribunal Chair but did not advance an objection – no real practical injustice.
COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether award is contrary to public policy – whether alleged misleading conduct undermines the arbitral award – doctrine of separability – alleged illegality did not infect or impeach the arbitration agreement itself.
COMMERCIAL ARBITRATION – Recognition and enforcement of awards – Grounds for refusal – whether award contains decisions on matters beyond the scope of the submission to arbitration – whether dispute involved rights arising under separate but related agreement – whether separate agreement includes an agreement to arbitrate – where award based on contractual promise arising out of primary contract containing the arbitration agreement – submissions relating to separate but closely related agreement remain within scope of submission to arbitration.
CIVIL PROCEDURE – Leave to adduce further evidence and submissions – leave sought to rely on further evidence to be tendered after final hearing – new arguments sought to be raised by written submissions after final hearing – where written submissions raised six new arguments not advanced at oral hearing – whether new arguments meritorious – where additional leave sought to file or serve further evidence – interests of justice do not warrant grant of leave to rely on further evidence and submissions.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Commercial Arbitration Act 2010 (NSW), ss 1, 7, 8, 35, 36
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Corporations Act 2001 (Cth)
GTA Dispute Resolution Rules, arts 7, 23-26, 34, 37
GTA Trade Rules, r 23
International Arbitration Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW); rr 7.2, 47.6
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ashjal Pty Ltd v Alfred Toepfer International Pty Ltd (2012) 82 NSWLR 93; [2012] NSWSC 1306
Blacktown City Council v Statewide Civil Pty Ltd [2026] NSWSC 176
Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192
Ferris v Plaister (1994) 34 NSWLR 474
Guoao Holding Group Co Ltd v Xue (No 2) [2022] FCA 1584
Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170
King River Digital Assets Opportunities SPC v Salerno [2023] NSWSC 510
Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155
Lieschke v Lieschke [2023] NSWCA 241
Siemens WLL v BIC Contracting LLC [2022] FCA 1029
Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108
Category: Principal judgment
Parties: Good Earth Oils Pty Ltd (Plaintiff)
Colossus Food Pty Ltd (Defendant)
Representation: Counsel:
N Kulkarni (Plaintiff)
Y Lin as the Managing Director of Colossus Food Pty Ltd (Self-represented)
Solicitors:
MWA Lawyers (Plaintiff)
Self-represented (Defendant)
File Number(s): 2025/00328348
Publication restriction: Nil
The plaintiff, Good Earth Oils Pty Ltd (Good Earth), seeks orders for the recognition and enforcement pursuant to s 35(1) of the Commercial Arbitration Act 2010 (NSW) (the CA Act) of an arbitral award “GTA Arbitration 397 – Final Award” (the Award).
The Award dealt with a dispute concerning a purchase contract for the sale of “Premium Cold Press Canola Oil” entered into on 25 November 2023 (the Purchase Contract) between Good Earth as vendor and the defendant, Colossus Food Pty Ltd (Colossus) as purchaser. A dispute arose between the parties, which Good Earth submitted to arbitration with Grain Trade Australia Ltd (GTA) in August 2024. An arbitral panel was constituted by GTA, as described further below. On 2 April 2025, the arbitral panel made the Award (although it was not released to the parties until 8 May 2025), providing reasons and concluding with the following orders:
1. The Respondent shall pay the Claimant the sum of A$104,712 forthwith.
2. No order as to legal costs.
3. The Respondent shall pay Interest on A$104,712 at 7% per annum from 1 May 2024 to the date of this Award.
4. In addition, the Respondent shall indemnify the Claimant in relation to any fees paid by the Claimant to GTA in respect of this arbitration.
At the final hearing, Mr Jack Lin attended and sought to represent Colossus. Mr Lin is not a legal practitioner and is not registered as a director of Colossus. Since Colossus is a company within the meaning of the Corporations Act 2001 (Cth), it can only carry on proceedings, consistent with rule 7.1(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), by a solicitor or a director.
Mr Lin described himself as the “Managing Director” of Colossus. That is the way he described himself in his email signatures and in his written submissions before the arbitral panel. He was also the person who dealt with Good Earth on behalf of Colossus in entering into the underlying contract or contracts which were the subject of the arbitration.
Good Earth accepted that the term “director” in rule 7.2 of the UCPR means a director as defined in the Corporations Act 2001 (Cth) and accordingly includes a person who acts in the position of director.
At the hearing, I received oral evidence from Mr Lin which established that he was accustomed to act in a role which warranted the description “Managing Director”. The sole registered director, who is Mr Lin’s mother, does not speak English, and Mr Lin said that while she is not entirely passive, he (Mr Lin) has a role which represents about 70% of the management and direction of the company. Mr Lin satisfied me that he has the sole registered director’s authority, provided informally through their practices and their joint operation of the business.
Mr Lin also confirmed on oath his understanding – after I had explained the Court’s costs powers to him – that he may be ordered to pay costs personally, and that one reason why he may be ordered to pay costs personally is if it later transpires that he did not have Colossus’ authority.
I was satisfied that I had received evidence which in substance complies with the requirements of rule 7.2(2)(b) of the UCPR. I permitted Mr Lin to represent Colossus at the final hearing. Good Earth did not oppose this course.
As at the commencement of the final hearing, Colossus had not filed or served any evidence in support of the contentions in its amended commercial list response (the Amended List Response). Mr Lin, on behalf of Colossus, sought an adjournment of the final hearing to enable him to put on affidavit evidence. I refused that application.
The evidence established that Mr Lin was Colossus’ managing director for the whole of the period these proceedings have been on foot.
Colossus at first appeared through a solicitor, but that solicitor ceased acting on 17 September 2025.
When Colossus filed the Amended List Response on 3 October 2025, it was signed by Mr Lin personally.
Colossus did not serve any evidence in accordance with the timetable, which originally required Colossus’ evidence to be served by 17 November 2025.
On 5 December 2025, the Court noted that Colossus had not served any affidavit evidence and ordered that Colossus seek leave of the Court before filing or serving the affidavit evidence it intended to rely upon at trial.
While Mr Lin made assertions from the bar table at the final hearing about having been busy with the affairs of the company, nothing he said indicated that he was unable to prepare affidavit evidence, should he have chosen to do so. Mr Lin also said that Colossus could not afford legal representation. I do not know whether or not that is correct, but given Mr Lin was purporting to act for Colossus during this period, including in these proceedings, I do not accept that that provides a basis for not preparing evidence in accordance with the timetable, or at all, before the final hearing.
On 17 December 2025, Mr Lin caused Colossus to file a notice of motion seeking leave to file evidence after the deadline that had been imposed. That matter came before Peden J on 9 February 2026. Colossus was represented (with her Honour’s leave) on that day by an employee, Mr Jiang Cheng Lin, a different person to Mr Jack Lin. Justice Peden dismissed the motion, noting during argument that no affidavit evidence had been served so that it could be the subject of leave. No affidavit evidence was served after 9 February 2026 before the final hearing.
Mr Lin said he understood from around 9 February 2026 that Colossus could submit documents, and it would be a matter for the Court whether the Court permitted Colossus to rely upon them. Despite knowing this, Colossus prepared no material to be served or provided to the Court in advance of the final hearing on 3 March 2026.
In light of this history, I refused the application for an adjournment and heard substantive legal argument (Mr Lin having no objection to Good Earth’s evidence). It became clear in the course of oral submissions that most of the arguments Mr Lin wished to advance were legal arguments which could be made (and were made) on the basis of the evidence before the Court.
1C Paramount object of Act
(1) The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.
(2) This Act aims to achieve its paramount object by:
(a) enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest), and
(b) providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.
…
The Purchase Contract was dated 15 November 2023. A copy signed by Good Earth was emailed to Colossus on 20 November 2023. Colossus emailed back a countersigned copy on 25 November 2023. I therefore proceed on the basis that the Purchase Contract was entered into on 25 November 2023.
The Purchase Contract contained the following clause:
Other Terms: Any term where in conflict with the above shall be as the standard terms and conditions of the current Grain Trade Australia (GTA) Contract and Dispute Resolution Rules.
Good Earth tendered before me the GTA Trade Rules and the GTA Dispute Resolution Rules, as in force at the time the contract was entered into. I received no evidence suggesting there were other GTA rules described as the “Contract Rules” or the “Contract and Dispute Resolution Rules”. While the “Other Terms” clause is not well drafted, I am satisfied that a reasonable person in the position of the parties would understand that it incorporates the GTA Trade Rules and the GTA Dispute Resolution Rules (the former being described in the contract as the “GTA Contract … Rules”).
Relevantly, the GTA Trade Rules set out that:
Rule 23.0 Arbitration
Any dispute, controversy or claim arising out of, relating to or in connection with a contract incorporating the Rules, including any question regarding its existence, validity or termination shall be resolved by arbitration in accordance with the Dispute Resolution Rules in force at the commencement of the arbitration.
Article 2: Jurisdiction
1. GTA has jurisdiction through the incorporation of the GTA Trade Rules or these Dispute Resolution Rules into a contract, by separate agreement of the Parties.
2. A Member or Non-Member, who incorporates the GTA Trade Rules or these Rules into its contract or agreement agrees to resolve any disputes arising out of the inception, negotiation, formation, performance or any other aspect of the contract or contractual relationship, pursuant to these Rules.
3. Members and Non-Members incorporating these Rules agree not to apply to any Court unless the dispute has been finalised pursuant to these Rules or the dispute falls outside the scope of these Rules.
Even if the “Other Terms” clause in the Purchase Contract only incorporated the GTA Dispute Resolution Rules, it is plain from the face of the Dispute Resolution Rules that contractual incorporation of those rules entails agreement to the process set out in those rules including, relevantly, arbitration: see in particular Article 2(2).
I am accordingly satisfied that the Purchase Contract includes an “arbitration agreement” for the purposes of s 7(1) of the CA Act.
On the evidence before me, which includes the emails by which the signed version of the agreement was exchanged between the parties, the requirement for the arbitration agreement to be in writing is met by an electronic communication accessible so as to be useable for subsequent reference, in accordance with s 7(5) of the CA Act.
Good Earth made an application to GTA for an arbitration on 19 August 2024. On 26 August 2024, Good Earth signed GTA’s Contract for Full Arbitration. By that date, Good Earth had paid GTA’s fee for initiating the dispute resolution process ($937.86) and GTA’s arbitration administration and process fees ($4,862 and $9,212.50 respectively).
On 4 October 2024, the GTA Arbitrations Manager notified the parties of the proposed arbitral panel.
On 15 October 2025, GTA (through its arbitration email address) noted that there had been no objections to arbitral panel and requested Good Earth’s points of claim by 5 November 2024.
Colossus participated in the arbitration, including by sending to the GTA Arbitrations Manager by email:
on 26 November 2024, a document titled “Respondent’s Points of Defence”, together with exhibits 1 to 10 referred to in the points of defence;
on 6 January 2025, a document titled “COLOSSUS FOOD Response”, together with exhibits 1 to 3 referred to in the response; and
on 4 March 2025, a document titled “Response to Claimant 04/03/2025”.
On 14 March 2025, GTA Arbitrations Manager informed the parties that the Chair of the arbitral panel had withdrawn from the panel that had been constituted for the parties’ arbitration: Exhibit C, Email from GTA to Good Earth and Colossus on 14 March 2025 at 12:01pm. By the same email, the Arbitrations Manager also informed the parties of the appointment of a new Chair and stated that the parties would need to submit any challenges to the new Chair’s appointment within 5 business days. Neither party made any such challenge.
On 7 May 2025, Good Earth paid the respondent’s share of GTA’s arbitration fees in an amount of $14,074.50.
On 8 May 2025, the Award was released to the parties.
The Court received copies of the Purchase Contract and the Award that were certified as true copies by the Chief Executive Officer of Good Earth. By operation of r 47.6(2) of the UCPR, s 9 of the International Arbitration Act 1974 (Cth) applies, which requires the production to the Court of either the original or a “duly certified copy” of (a) the award and (b) the arbitration agreement. A copy may be duly certified by being certified to the satisfaction of the Court: see s 9(2)(b) of the International Arbitration Act.
In the circumstances of this case, in which Colossus was before the Court and did not dispute the terms of the Purchase Contract or the Award, the copies have been certified to my satisfaction. I take comfort from the view expressed by Stewart J in Guoao Holding Group Co Ltd v Xue (No 2) [2022] FCA 1584 at [57] that these provisions have little role to play, apart from the potential evidentiary role of s 9(5), in inter partes proceedings where there is no contest as to the terms of the award or the arbitration agreement.
In those circumstances, it is not necessary for me to decide whether, as Good Earth contended, certification by a plaintiff’s chief executive officer should generally be regarded as sufficient to satisfy a court under s 9(2)(b). As to that question, Good Earth drew my attention to Justice Stewart’s decision in Siemens WLL v BIC Contracting LLC [2022] FCA 1029 at [24]-[25], where copies certified by a solicitor with carriage of the matter was accepted as adequate certification. I offer no concluded view about whether, in an ex parte matter, such certification should satisfy a court where it is by a chief executive officer who is not subject to the same professional regulations as a solicitor.
1 Scope of application
(1) This Act applies to domestic commercial arbitrations.
(2) The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in New South Wales.
(3) An arbitration is domestic if:
(a) the parties to an arbitration agreement, have, at the time of the conclusion of that agreement, their places of business in Australia, and
(b) the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration, and
(c) it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies.
(4) For the purposes of subsection (3):
(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement, and
(b) if a party does not have a place of business, reference is to be made to the party’s habitual residence.
…
Model Law note –
The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road.
I am satisfied that the arbitration is a “domestic commercial arbitration” as defined in s 1 of the CA Act:
As to s 1(1), the relationship between Good Earth and Colossus concerns a “trade transaction for the supply or exchange of goods or services”, as described in the note on the interpretation of the word “commercial” at the foot of s 1 of the CA Act. I am satisfied that the Purchase Contract formed part of a commercial relationship and that the arbitration was a commercial arbitration for the purposes of the CA Act.
As to s 1(3)(a) and s 1(4)(a), both parties had (and still have) their places of business in Australia at the time of entry into the arbitration agreement. Even if either party had a place of business abroad (which the evidence does not suggest), the parties’ Australian places of business would have the closest relationship to the arbitration agreement, noting that the Purchase Contract provided for Good Earth’s address in Queensland and Colossus’ address (and delivery address) in Victoria.
As to s 1(3)(b), for the reasons set out below, both parties agreed that the dispute be settled by arbitration. I address below the grounds on which Colossus sought to resist the contention that it had agreed to this dispute being settled by arbitration.
As to s 1(3)(c), there is no suggestion that the Model Law, as defined in the CA Act, applies.
Colossus’ Amended List Response takes five points:
that there was no valid or concluded arbitration agreement shown between Good Earth and Colossus: s 36(1)(a)(i) CA Act;
that the “exclusivity obligation” which Colossus says Good Earth relied on arose in a separate agreement that was not the subject of the arbitration agreement: s 36(1)(a)(iii) CA Act;
that Colossus was denied procedural fairness, specifically on the stated basis that Colossus “was denied a proper hearing: no oral hearing, insufficient notice, and inadequate time to present its case”, and that there was a change of arbitrator “without disclosure or opportunity to challenge”: s 36(1)(a)(ii) CA Act;
that Good Earth made misrepresentations as to the “premium” quality of its canola oil; and
that the enforcement of the award would be contrary to public policy: s 36(2)(b)(ii) CA Act.
I deal with each issue raised by Colossus in turn. In doing so, it is appropriate to stress that s 36 of the CA Act provides only limited grounds on which recognition or enforcement of an arbitral award may be refused: Ashjal Pty Ltd v Alfred Toepfer International Pty Ltd (2012) 82 NSWLR 93; [2012] NSWSC 1306 at [81].
By written submissions dated 13 March 2026 – which go substantially beyond the limited grant of leave I gave at the final hearing on 3 March 2026 – Colossus sought leave to raise further issues which I deal with later in these reasons.
Colossus contends that it did not agree to arbitration because it did not sign GTA’s “Dispute Resolution Service Contract for Full Arbitration”. This document was emailed to Colossus by the GTA Arbitrations Manager on 22 August 2024, but Colossus did not sign and return it. I do not accept that this means Colossus did not agree to arbitration. Colossus had already agreed to arbitration in accordance with the GTA Trade Rules and GTA Dispute Resolution Rules. Colossus’ refusal or failure to sign GTA’s contract does not undermine the arbitration agreement to which Colossus had bound itself by signing the Purchase Contract.
Colossus’ Amended List Response also refers to other entities involved in the same dealings – the suggestion apparently being that there was some doubt about the entity with whom Colossus had contracted, or some additional party that was a necessary party to the litigation. I do not accept either of these contentions. The evidence is clear that the Purchase Contract, the Exclusivity Agreement (to which I turn next) and the arbitral proceedings were entered into and conducted exclusively between Good Earth and Colossus. The fact that there were other entities involved in the manufacture or supply of the canola oil does not alter the contractual position between Good Earth and Colossus.
I reject this ground.
Colossus contends that the dispute involved rights arising under what Colossus says is a separate agreement between the parties, the “Exclusivity Agreement”, which was said to fall outside the scope of the agreement to arbitrate.
The following additional facts are relevant to this ground:
The draft Purchase Contract, although dated 15 November 2023, was sent by email to Colossus, signed by Good Earth, on 20 November 2023.
On 23 and 24 November 2023, Good Earth and Colossus in turn signed a separate document titled “Exclusive Marketing Rights Agreement” (the Exclusivity Agreement). The Exclusivity Agreement did not include specific reference to the GTA Trade Rules or Dispute Resolution Rules, but included clause 8:
Dispute Resolution: In the event of any disputes arising during the agreement, the parties agree to resolve them through mediation, arbitration etc.
On 25 November 2023, Colossus emailed to Good Earth the Purchase Contract, countersigned by Colossus. Accordingly, while the Purchase Contract was struck on 25 November 2023, its anticipated terms were known to the parties from 20 November 2023.
Both parties made submissions to the arbitral panel about the Exclusivity Agreement.
Colossus contends in this Court that compliance with the Exclusivity Agreement was a precondition to the obligations under the Purchase Contract, and that the Exclusivity Agreement did not itself incorporate the GTA Trade Rules or the GTA Dispute Resolution Rules.
The first difficulty with Colossus’ argument is that the contractual promise on which the Award was based was the promise in the Purchase Contract, being the agreement containing the arbitration agreement. That plainly falls within the scope of the arbitration clause. While Good Earth raised the Exclusivity Agreement in its submissions to the arbitral panel, it is clear from the face of the submissions that Good Earth raised the issue pre-emptively, because Colossus sought to resist Good Earth’s claim on the basis of an allegation by Colossus that Good Earth breached the Exclusivity Agreement. The fact that Colossus sought to rely, by way of defence, on the asserted obligations under the Exclusivity Agreement did not deprive the arbitral panel of its jurisdiction.
This point alone suffices to dispose of Colossus’ argument. Colossus clearly agreed that disputes arising under the Purchase Contract should be submitted to arbitration in accordance with the GTA Trade Rules and Dispute Resolution Rules. If Colossus sought to raise, as a defence to Good Earth’s claim under the Purchase Contract, some argument based on the Exclusivity Agreement then that was a matter covered by the scope of the arbitration agreement. That would clearly be a “dispute, controversy or claim … relating to or in connection with a contract incorporating the [Trade] Rules” (see rule 23.0 of the GTA Trade Rules) and a dispute “arising out of the inception, negotiation, formation, performance or any other aspect of the contract or the contractual relationship (see article 2 of the GTA Dispute Resolution Rules)”.
Even if I were wrong on this, I would not accept Colossus’ argument about the Exclusivity Agreement.
Colossus contends that the Exclusivity Agreement is the “head agreement”, and that it was a condition precedent to the operation of the Purchase Contract. Colossus also says that the Exclusivity Agreement should not be construed by reference to the draft Purchase Contract. I am not persuaded that the Exclusivity Agreement is the “head” agreement such that the Purchase Contract is some sort of subsidiary agreement. There can be no doubt that the two contracts are closely linked and must be read together. However, if anything, that would tend to reinforce the commercial incoherence of the GTA Trade Rules and the GTA Dispute Resolution Rules being incorporated in relation to the Purchase Contract but not in relation to the Exclusivity Agreement.
In its Amended List Response, Colossus raises two procedural fairness issues.
Colossus was denied a proper hearing, because there was no oral hearing, insufficient notice and inadequate time to present its case; and
the change of arbitrator was made without disclosure or the opportunity for challenge.
The allegation that there was insufficient notice or inadequate time for Colossus to present its case can be readily dismissed. Colossus plainly had notice of the arbitration, and participated throughout the arbitral proceedings, including by preparing submissions with attached exhibits. Colossus at no point suggested that it did not have sufficient time to present its case. Colossus and Good Earth were informed on 10 February 2025 by the GTA Arbitrations Manager that the arbitral panel had met to discuss the arbitration and was finalising the award. The GTA Arbitrations Manager emailed subsequently, on 13 February 2025, giving the parties an opportunity to put on further material. After Good Earth emailed a submission with attached exhibits on 21 February 2025, Colossus emailed a response on 4 March 2025. I return to the email of 13 February 2025 below, but for present purposes it suffices to observe that Colossus took advantage of this opportunity and did not suggest that it needed more time to present its case. This was in a context where the email of 10 February 2025 made it clear that the arbitral panel was otherwise ready to proceed to finalise the award.
I am satisfied that Colossus had sufficient notice of the arbitration and had adequate time to present its case.
The GTA Dispute Resolution Rules at article 34(1) provide for an oral hearing only if a party applies for one. There is no evidence of Colossus (or Good Earth) applying for an oral hearing. Colossus, through Mr Lin, accepted during argument that it did not specifically request an oral hearing.
Mr Lin says that when he caused Colossus to provide submissions and evidence to the arbitral panel, he did not understand that this was Colossus’ “last window” to submit evidence, and that he thought he would either get an oral hearing or an opportunity to contest the issues in court. Mr Lin appeared to accept that if he had received an oral hearing before the arbitral panel, this may have sufficed.
Mr Lin’s belief as to the binding or non-binding nature of the arbitration is irrelevant. There is nothing to suggest that Good Earth, GTA or the arbitral panel contributed to Colossus’
asserted belief. The GTA Trade Rules and GTA Dispute Resolution Rules, which Colossus should have known were being invoked, make the procedure clear, including that there will only be an oral hearing if one or both parties applies for one. Furthermore, communications from the GTA Arbitrations Manager only tended to reinforce the conclusion that the opportunity for written submissions and documentary evidence was the only opportunity the parties were being given. In particular:
On 13 February 2025, the GTA Arbitrations Manager wrote to the parties saying that the parties had not produced evidence in support of their claim and defence. The arbitral panel had considered dismissing Good Earth’s claim for want to evidence but decided that this was unreasonably prejudicial. Accordingly, Good Earth was given five business days to produce evidence of specified matters and Colossus was given seven business days to make any submissions in reply. Both parties availed themselves of that opportunity and Colossus, in doing so, referred also to the evidence it had already provided.
On 14 March 2025, in the context of an email about the need to appoint a new Chair to the arbitral panel, Mr Farnsworth (a matter I return to below), the GTA Arbitrations Manager informed the parties that they had five business days to submit in writing any challenges to Mr Farnsworth’s appointment. The email concluded: “If there are no objections, Mr Farnsworth will be written into the record and the Tribunal will proceed with delivering the Award.”
Despite receiving these communications, Colossus did not inform GTA, the arbitral panel or Good Earth that Colossus wanted (or expected) a further opportunity to advance its case. While Mr Lin said from the Bar Table that if he had known that this was the “last window” he would have provided evidence and submissions about the exclusivity agreement, the evidence in this Court clearly establishes that Colossus in fact provided evidence and submissions on that matter.
Colossus also complains about the replacement of the Chair of the arbitral panel on 14 March 2025.
The email from the GTA Arbitrations Manager on 14 March 2025 said:
Dear Parties,
Due to unforeseen circumstances the Chair Mr Stephen Howells has withdrawn from the Tribunal for Arbitration 397 between Good Earth Oils Pty Ltd and Colossus Food Pty Ltd.
As per Article 25 of the GTA Dispute Resolution Rules: In the event of death, absence, resignation, refusal to act, or disqualification pursuant to Article 24 of an Arbitrator(s), GTA shall within 5 business days nominate an eligible Arbitrator who consents to serve and meets the criteria of Article 23. The Parties shall have the opportunity to challenge the nomination in accordance with Article 24. The approved replacement Arbitrator shall have the same power and duties as the Tribunal.
GTA nominates Mr Geoff Farnsworth of Holding Redlich, who has consented to serve as Chair. In addition to his role as Secretariat, Mr Farnsworth is an experienced arbitrator and is already familiar with this arbitration and your submissions.
The Parties have 5 business days to submit in writing any challenges to Mr Farnsworth’s appointment, due COB 21 March 2025. If there are no objections, Mr Farnsworth will be written into the record and the Tribunal will proceed with delivering the Award.
Article 23: Formation of a Full Arbitration Tribunal
1. The Tribunal shall consist of three Arbitrators, two of whom shall be nominated from the GTA Approved Arbitrators List in writing as follows:
a. The Claimant shall nominate one Arbitrator (see Article 3.4 and 6.3);
b. The Respondent shall nominate one Arbitrator (see Article 21.2 and 22.3);
2. Following the above nominations, GTA shall appoint the chair.
….
Article 24: Challenge/Revocation of Arbitrator’s Appointment
1. Upon receipt of an Article 23.5 notification, each Party shall have 5 business days to notify GTA, in writing, of any challenge to the appointment on the basis of apprehended or actual bias or prejudice. If a challenge is upheld, the nominating Party shall make a new nomination and GTA shall replace the Arbitrator within 5 business days.
…
Article 25: Nomination and Replacement of Arbitrators
In the event of death, absence, resignation, refusal to act, or disqualification pursuant to Article 24 of an Arbitrator(s), GTA shall within 5 business days nominate an eligible Arbitrator who consents to serve and meets the criteria of Article 23. The Parties shall have the opportunity to challenge the nomination in accordance with Article 24. The approved replacement Arbitrator shall have the same power and duties as the Tribunal.
The procedure adopted by GTA was consistent with these rules.
While Mr Lin says there was no explanation of what would happen after the Chair was replaced, I am unable to accept that. The Arbitrations Manager’s email clearly concluded by saying that if there was no objection, the arbitral panel would proceed with delivering the Award.
There is no suggestion that Colossus had a proper basis to object to Mr Farnsworth – and no such objection was advanced in the time provided in accordance with the GTA Dispute Resolution Rules.
In those circumstances, there was no “real practical injustice”.
I reject this ground.
By its Amended List Response dated 3 October 2025, Colossus appears to resist enforcement on the basis of misleading or deceptive conduct on the part of Good Earth that “undermine[s] the arbitral award”. The alleged misleading conduct was that the canola oil was falsely or misleadingly represented to be “premium” quality, and that the canola oil did not meet the statutory guarantees in ss 54-56 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (Australian Consumer Law).
Colossus did not explain in its Amended List Response how this contention, even if true, engaged s 36 of the CA Act on the facts of this case.
Doing the best I can, there are two circumstances in which “misleading or deceptive conduct” might operate to “undermine [an] arbitral award”. First, an arbitration agreement might not provide for the submission of disputes concerning an allegation of misleading or deceptive conduct to the jurisdiction of the arbitral panel. Second, a claimant may have procured a respondent’s entry into the arbitration agreement through misleading or deceptive conduct, such that the arbitration agreement was invalid under the law to which the parties subjected it (s 36(1)(a)(i) CA Act) or was null, void, inoperative or incapable of being performed (s 8 CA Act), or that enforcement of the Award would be contrary to the public policy of the State (s 36(1)(b)(ii) CA Act).
Neither circumstance is established on the material before me.
Turning first to the question whether a claim alleging misleading or deceptive conduct falls within the scope of the arbitration agreement, it is well-established that in considering the construction of an arbitration agreement, and whether a “matter” is within the scope of an arbitration agreement, one should afford arbitration clauses a broad and liberal construction: see generally Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155 at [78]-[94] and King River Digital Assets Opportunities SPC v Salerno [2023] NSWSC 510 at [35]-[36].
The GTA Trade Rules refer to arbitration “any dispute, controversy or claim arising out of, relating to, or in connection with a contract …”, and the GTA Dispute Resolution Rules refer “any disputes arising out of the inception, negotiation, formation, performance or any other aspect of the contract or contractual relationship”. Those phrases should be given a broad and liberal construction.
I am satisfied that the arbitration agreement extends to determining Colossus’ allegations about misleading conduct, including misleading conduct said to have induced Colossus to enter into the Exclusivity Agreement and/or the Purchase Contract.
I now turn to the second circumstance, being whether illegality in the form of the alleged misleading and deceptive conduct rendered the arbitration agreement invalid under the law to which the parties have subjected it (s 36(1)(a)(i)) or renders the enforcement of the Award contrary to public policy (s 36(1)(b)(ii)).
[219]: This doctrine of separability (or severability or autonomy) that the arbitration clause is considered to be an agreement independent from the main contract has two principal aspects of importance. First, the arbitrator can be seen to have a clear basis of jurisdiction to decide whether the substantive contract was void or voidable or should be rescinded, without destroying his or her own authority or jurisdiction to arbitrate. Secondly, and underpinning this first question, the invalidity of the substantive contract does not necessarily entail the invalidity of the arbitration clause.
…
[221] In Ferris v Plaister (1994) 34 NSWLR 474, the New South Wales Court of Appeal decided that an arbitration clause is to be regarded as separate and severable from the main contract. The Court found that the doctrine of separability was part of the proper approach to analysing arbitration clauses and agreements: that it was part of the proper approach of the common law of Australia in that regard. The decision was unanimous, Kirby P, Mahoney JA and Clarke JA. …
Plainly, it is not enough to prove that an alleged illegality caused the parties’ entry into the agreement as a whole. The illegality must infect or impeach the arbitration agreement itself.
The circumstances in which alleged misleading and deceptive conduct could impeach the arbitration agreement itself were considered in Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 (Hancock). The Court found that the doctrine of separability underpinned an examination of whether or not the arbitration agreement is null, void, inoperative or incapable of being performed, for the purposes of s 8 of the CA Act. The Court said at [359]-[360] (emphasis added):
[359]: ... It can be accepted that there may be allegations or complaints about the validity of the main agreement in question that are relevant to any attack on the arbitration agreement. But this is not because of any argument based on causation that since the main agreement is invalid, so is the arbitration agreement; rather it is because the nature of the allegation is that it stands as an independent ground of impeachment of the separate arbitration agreement directly related to the arbitration agreement. In a valuable passage in Joseph D, Jurisdiction and Arbitration Agreements and their Enforcement (3rd ed, Sweet and Maxwell, 2015) at 127–129 [4.40] there is a discussion of examples of circumstances where the same ground can be seen to impeach both the main agreement and the arbitration agreement: non est factum, illegality of a kind that is directed to the arbitration agreement such as a consumer protection statute, lack of signature and some kind of fundamental mistake (about the arbitration agreement). Fraud, if fundamentally impeaching any consent, may be independently directed to the arbitration agreement: see Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd [1999] 1 Lloyd’s Rep 784 at 797
[360] The doctrine of separability recognised by s 16 of the CA Act was in fact part of the common law of Australia as enunciated by the Court of Appeal of New South Wales in Ferris v Plaister and the Full Court of this Court in Comandate. That position conforms with the common law of England enunciated at least since the Court of Appeal in Harbour Assurance and with the recognised position in many civil law countries.
As I indicated above, I gave Colossus a limited opportunity, after the final hearing, to seek leave to amend its Amended List Response to articulate an argument that the alleged misleading conduct impeached the arbitration agreement, and to seek leave to adduce further evidence in respect of that issue. My orders required evidence and submissions in support of that application to be filed, served and sent to my chambers by 10 March 2026.
On 10 March 2026, Colossus filed evidence which I will address shortly, together with a notice of motion seeking more time to serve further evidence and submissions. The notice of motion and evidence were filed by solicitors who were approached by Colossus after the final hearing (being the same firm who had acted for Colossus in the proceedings up until September 2025). The explanation for seeking further time was that: Colossus had only re-approached the solicitors at 8pm on Friday 6 March 2026. The solicitors retained counsel on Monday 9 March 2026 and counsel said they needed more time “to review the Court Book, give advice, take instructions, and properly draft documents and submissions”.
This did not provide an adequate explanation for needing more time to prepare and serve the evidence which was the subject of the orders I made on 3 March 2026. Mr Lin had informed me at the beginning of the hearing on 3 March 2025 that he already had the evidence upon which he sought to rely.
No explanation was given for why Mr Lin did not approach the solicitors earlier than 8pm on Friday 6 March 2026. Mr Lin had agreed, at the end of the hearing, that 7 days would be sufficient from 3 March 2026.
Accordingly, especially noting that Colossus had in fact served evidence on which it sought to rely within the time I ordered, I did not grant an extension of time to file or serve further evidence. However, I extended the time for Colossus to file submissions to 13 March 2026.
On 13 March 2026, Colossus filed submissions which did not address this issue about misleading or deceptive conduct at all, let alone articulating a basis on which the alleged misleading conduct might be seen as impeaching the arbitration agreement. I return to the issues sought to be raised by these written submissions below.
The evidence which Colossus served on 10 March 2026, so far as it relates to the allegations of misleading conduct, comprised:
an email dated 27 October 2023 forming part of the pre-contractual discussions between Good Earth and Colossus; and
an affidavit and expert report, both dated 9 March 2026, offering opinions about the meaning of certain descriptions of an edible oil product.
None of this evidence provides support for an argument that any alleged misleading conduct could be said to impeach the arbitration agreements in the Purchase Contract or in the Exclusivity Agreement. In those circumstances, the interests of justice do not warrant a grant of leave to rely on this evidence despite its late service. If such leave were granted, it would be necessary to allow Good Earth an opportunity to respond, and there would likely need to be a further hearing with contested evidence. None of this is warranted, especially having regard to the paramount object in s 1C of the CA Act and the guiding principles in Part 6 of the (NSW) ().
Colossus relied on two matters for public policy: first, denial of procedural fairness; and second, the contention that the giving effect to an Award would conflict with the public policy of the State in light of the alleged misrepresentations as to the quality of the canola oil. The former is addressed in section (c) above at [61] to [78]. The latter is addressed in section (d) above at [79] to [90].
While Colossus advanced an argument that enforcement would be contrary to public policy because it would give effect to dealings purportedly conflicting with the consumer protection provisions in the Australian Consumer Law (including as regards the ultimate consumers of the canola oil), I do not accept that argument. Recognition and enforcement of the Award does not threaten to harm consumers, nor does it create the spectre of consumers having no remedy if someone supplies them with substandard products. These proceedings are not concerned with the position of those consumers. These proceedings are rather concerned with the contractual position between Good Earth and Colossus, and the consequences under the CA Act of their agreement to arbitrate.
I reject this ground.
On 13 March 2026, Colossus filed submissions seeking leave (by written submission, not by notice of motion) to raise six new arguments, none of which were advanced by Colossus at the final hearing or were the subject of the limited orders I made at the end of the hearing. None of those arguments had previously been the subject of pleadings. No application has been made to amend the Amended List Response to raise these arguments. This irregular application is made not by Mr Lin, whose inexperience as a non-lawyer might have provided some partial explanation, but by the solicitors approached by Colossus at 8pm on 6 March 2026.
Especially having regard to the paramount object in s 1C of the CA Act and the guiding principles of civil litigation in Part 6 of the Civil Procedure Act, the simple reason why these submissions cannot be accepted is that they go beyond the pleadings, in circumstances where no application is made to amend the pleadings and no sufficient basis has been advanced to permit such an application – let alone one purportedly made irregularly by the mere filing of written submissions.
In responsive submissions filed 16 March 2026, Good Earth opposes leave being granted to advance these new arguments, rightly contending that a party is not entitled to every indulgence (Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108 at [63]) and that the dictates of justice do not contemplate permitting a party to raise any argument at any point in proceedings (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [98]). Good Earth says it would need further time to respond substantively if the Court were minded to grant leave to Colossus to rely on the new arguments sought to be raised.
I am satisfied that the interests of justice do not warrant giving Colossus leave to amend its pleadings, nor do they warrant permitting Colossus to raise new points not pleaded or ventilated at the final hearing. In forming this view, I have made my own assessment of the strength of Colossus’ arguments taken at their highest.
The first three arguments relate to an email sent by the GTA Arbitrations Manager to the parties on 13 February 2025. That email said:
Dear Parties,
As formerly advised the Tribunal met to consider this matter.
The Tribunal has noted that while it is imperative on the parties to produce evidence in support of their claim and defence, in this case that has not occurred.
The Tribunal has considered dismissing the Claimant’s claim for want of evidence but has decided that this would be unreasonably prejudicial, particularly given the parties do not appear to be legally represented.
In the circumstances, the Claimant is directed, within 5 business days, to produce evidence of;
1. The dollar value of its claim with reference to the tonnes of Premium Cold Press Canola Oil delivered to and paid for by the Respondent under contract GEO0113 dated 15 November 2023. We note that Exhibit 3 to the Claimant’s Claim Submission dated 4 November 2024 (Claim Submission) appears to relate only to the dollar value invoiced, with no indication of tonnes actually delivered against the contracted quantity; and
2. Independent evidence of the market value of Cold Press Canola Oil as at the date of alleged default, noting that Exhibit 10 to the Claim Submission appears to evidence a related party transaction and is not in any event sufficient evidence of the alleged default price.
The Respondent will be allowed 7 business days from receipt of any additional evidence to make any submissions in reply.
I note my previous request for legal costs was due tomorrow. I have revised this to COB Wednesday 5 March 2025 to allow for any additional costs that may be incurred responding to the Tribunal’s requests.
In response to this email, Good Earth sent a response with supporting documentation dated 21 February 2025. On 4 March 2025, Colossus sent its own response. As indicated above, the arbitral panel proceeded to make the Award on 2 April 2025.
It is convenient to deal with the first two new arguments together.
Colossus’ first new argument is that the email of 13 February 2025 was a breach of natural justice because the arbitral panel did not give Colossus an opportunity to object before allowing Good Earth an opportunity to put on further evidence. Colossus’ second new argument is that the arbitral panel failed to treat the parties equally because it invited Good Earth to repair its case, but did not invite Colossus to repair its case as to the quality of the oil.
I do not consider either of these arguments could be accepted, having regard to the evidence before this Court.
In the present case, under the GTA Dispute Resolution Rules:
Article 26(3) made it clear that submissions shall include any supporting evidence by way of statements, affidavits or documents;
Article 26(6) conferred on the arbitral panel power to request further submissions or documentation from either party if the panel decided that that further information or documentation was required “to reasonably reach a decision”, giving each party a reasonable opportunity to respond.
The email of 13 February 2025 was consistent with these requirements. The arbitral panel, having formed the view that it could not reasonably reach a decision without giving the parties an opportunity to adduce further evidence, was expressly empowered to invite further submissions or documentation. The arbitral panel gave that opportunity to both parties. Natural justice did not require the arbitral panel to hear from the parties before giving that opportunity, nor did a failure to hear from the parties result in any real, practical injustice.
It was open to the arbitral panel to form the view that it would be unreasonably prejudicial to dismiss the plaintiff’s claim without giving it that opportunity. As Bell CJ put it in Blacktown City Council v Statewide Civil Pty Ltd [2026] NSWSC 176 (Blacktown City Council) at [55], the “nature and indeed essence of arbitration is that it has a degree of procedural flexibility to it where formalism is eschewed or at least not insisted upon so long as fairness and equality are supplied in the process”. The question is not whether the arbitral panel’s decision to give an opportunity to adduce further evidence generated a sense of grievance in Colossus, but whether there was any denial of procedural fairness or “egregious [or] injudicious conduct” by the arbitral panel: Blacktown City Council at [42], [45]. On the evidence before me, there was not.
It follows that the Award should be recognised as binding in accordance with the CA Act and should be enforced. The judgment sum of $149,815.11 is calculated as follows:
$140,514.04, being the amount payable under the Award, comprising:
(a) $104,712, being the principal sum in the Award; plus (b) $6,729.04, being the interest payable in accordance with the Award up to the date of the Award; plus (c) $29,073, being the amount paid by Good Earth to GTA by way of Arbitration fees and filing fees, for which Colossus was ordered to indemnify Good Earth in the Award; plus
$9,301.07, being pre-judgment interest calculated at the Supreme Court rate (in accordance with Practice Note SC Gen 16) from 23 May 2025 to the date of this judgment (26 March 2026).
There are two minor matters to address concerning the parties’ arbitration costs, and the interest regime to be applied.
The commencement date for calculation of pre-judgment interest under s 100 of the Civil Procedure Act is the time the cause of action arose.
Article 37.8 of the GTA Dispute Resolution Rules sets out that “parties must comply with the terms of the Award within 10 business days of its receipt”. The parties received the Award on 8 May 2025. As such, Good Earth accepted that interest should not run for this 10 business day period. No order was made by the arbitral panel under s 33F(2) of the CA Act. Accordingly, the relevant period for pre-judgment interest under s 100 of the Civil Procedure Act commenced on 23 May 2025, and will run until the date this judgment takes effect (being 26 March 2026).
In the award, the arbitral panel ordered Colossus to indemnify Good Earth for fees paid to GTA in respect of the arbitration but did not quantify that amount. Although s 33B(5) indicates that s 33C of the CA Act does not cover the assessment of costs with regard to arbitration fees, I am satisfied that s 35, read together with s 33B especially s 33B(1), gives me power to make orders for payment of arbitration fees as required by the Award on the basis of the evidence before me. This was recognised by Stevenson J Ingham Property Development Pty Ltd v Impeccable Construction Pty Ltd [2017] NSWSC 298 at [13]-[14]. The arbitration fees are readily quantified based on the uncontested evidence placed before me by Good Earth.
Accordingly, I make the following orders:
An order pursuant to s 35(1) of the Commercial Arbitration Act 2010 (NSW) enforcing the GTA Arbitration 397 Final Award made on 2 April 2025.
Judgment for the plaintiff against the defendant in the amount of $149,815.11.
The defendant is to pay the plaintiff’s costs.
**********
GOOD EARTH OILS PTY LTD
COLOSSUS FOOD PTY LTD [2026] NSWSC 274
(2009) 239 CLR 175
(2012) 82 NSWLR 93
(2006) 157 FCR 45
(1994) 34 NSWLR 474
(2017) 257 FCR 442
(2020) 102 NSWLR 627
(2015) 235 FCR 464
At the end of the hearing, despite this history, which indicates that Colossus had already received an adequate opportunity to prepare and serve any evidence upon which it relied, I gave Colossus a further opportunity to seek leave to amend its Amended List Response and to adduce further evidence. That leave was limited to: (a) evidence comprising two emails to which Mr Lin had referred in closing argument, and (b) a specific issue, which Mr Lin only clearly raised for the first time in closing argument. The specific issue was the suggestion by Colossus that misleading conduct by Good Earth might impeach the arbitration agreement on which Good Earth relies.
In giving this further opportunity to Colossus, which I gave over the opposition of Good Earth, I was mindful that Colossus did not have the benefit of legal advice. While Mr Lin accepted that the new issue was not clearly pleaded, Colossus had in fairness already squarely raised an issue about misleading conduct in its Amended List Response. At the same time, I needed to be mindful of the paramount object in s 1C of the CA Act.
These considerations inform the proper interpretation of cl 8 of the Exclusivity Agreement. If it were necessary for me to decide, I would be of the view that cl 8 of the Exclusivity Agreement, construed in context, incorporated the agreement to arbitrate from the Purchase Contract, which was being negotiated at the same time. Were it otherwise, the express agreement to resolve disputes through arbitration would be open-ended.
The incorporation of the arbitration agreement into the Exclusivity Agreement is a second complete answer to Colossus’ contention in relation to that agreement.
Good Earth’s alternative argument was that, even if cl 8 of the Exclusivity Agreement was open-ended as to the arbitral forum to which the parties submitted, it clearly contemplated submission to arbitration. Good Earth commenced arbitration before the GTA, which was a forum capable of falling within the open-ended agreement in cl 8 to arbitrate. Colossus, by participating in the arbitration and making substantive submissions to the arbitral panel, submitted to the forum which Good Earth had selected. Colossus cannot now object to that forum. Thus, even if cl 8 were not interpreted as specifically incorporating the GTA Trade and Dispute Resolution Rules, it was nevertheless an agreement to arbitrate, and Colossus submitted to the arbitration which in fact proceeded.
For these reasons, even if the Award were based on obligations in the Exclusivity Agreement, I would be of the view that this would fall “within the terms of the submission to arbitration” and that the award does not “contain decisions on matters beyond the scope of the submission to arbitration”. It follows that s 36(1)(a)(iii) is not available to Colossus.
I reject this ground.
I do not accept that Mr Lin’s belief on this issue (even if it were established on evidence) would give rise to a “real practical injustice”: Lieschke v Lieschke [2023] NSWCA 241 at [24].
During the final hearing, Colossus sought leave to rely on an additional piece of evidence said to be relevant to this issue, being an email from Mr Lin to the GTA Arbitrations Manager dated 5 September 2024. In that email, Mr Lin stated the basis (or one of the bases) on which Colossus would resist Good Earth’s claim in the arbitration and asked for some clarification on the process. This email, even if it were admitted into evidence, would not improve Colossus’ position. There is no suggestion that the Arbitrations Manager misled Colossus as to the process or gave any sort of assurance that a particular process would be adopted. Accordingly, I have not granted leave to Colossus to adduce this evidence.
An invalidity affecting a contract as a whole will not necessarily invalidate the arbitration agreement. In Comandate Marine Corp v Pan Australia Shipping Pty Ltd *(*2006) 157 FCR 45; [2006] FCAFC 192, the Full Court held, at [219]-[221], that:
I reject Colossus’ contentions based on alleged misleading or deceptive conduct as a ground for resisting the recognition or enforcement of the Award.
As to Colossus’ second new argument, the email of 13 February 2025 made it clear that it was “imperative” for parties to produce evidence in support of “their claim and defence” (emphasis added). Colossus had an opportunity to adduce further evidence after receiving this email. It was not incumbent on the arbitral panel to point out lacunae in Colossus’ case. As the arbitral panel observed in the Award, Good Earth had provided various certificates of analysis in support of the quality of the oil – this was accordingly not a situation where there was no evidence on a topic, or where the arbitral panel was itself raising a new point for the parties’ consideration (cf Blacktown City Council at [51]). Good Earth had adduced evidence on the issue and had expressly drawn attention to this evidence in its reply submission of 13 December 2024 (ie, prior to the GTA Arbitrations Manager’s email of 13 February 2025). Colossus did not include any supporting evidence in its response to this reply sent on 6 January 2025. Despite being told on 13 February 2025 that it was imperative to provide evidence in support of its defence, Colossus did not provide further evidence to support its challenge to the quality of the oil after that date. There was no “egregious or injudicious conduct” by the arbitral panel; rather Colossus is seeking protection from its own failures or strategic choices (cf Blacktown City Council at [42], [45]). Nothing in the GTA Dispute Resolution Rules, the CA Act or the jurisprudence surrounding it suggests that Colossus should have been assisted to avoid the consequences of its own failures or strategic choices.
Colossus’ third new argument is that inviting Good Earth to “repair its case” without inviting Colossus to “repair its case” evinced apprehended bias. I do not accept that contention. If permitted to be raised, it would fail for the same reason that the second new argument fails.
Colossus’ fourth argument is that the arbitral panel “was indifferent to whether it had a copy of the contract before adjudicating on whether that contract was breached”. This argument involves a misconception of the evidence – the suggestion appears to be that the two-page Exclusivity Agreement was only a “cover letter” and that there was some further Exclusivity Agreement entered into between the parties. That does not reflect the evidence nor the course of argument before me at the final hearing. There was no evidence of a further exclusivity agreement. The submissions to the arbitral panel and Mr Lin’s submissions at the final hearing all proceeded on the basis that the two-page document signed by both parties was the Exclusivity Agreement.
Colossus’ fifth and sixth arguments proceed on the same misconception.
Especially given my view that the proposed new arguments do not have merit, I do not consider that the interests of justice warrant granting Colossus leave to amend its pleadings or advance these new arguments by way of written submission. Granting that leave would put Good Earth to further unnecessary cost of responding to them. I refuse the leave sought by Colossus in its written submissions dated 13 March 2026.