FEDERAL COURT OF AUSTRALIA

Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd [2013] FCA 918

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The hearing of the appeal be expedited.

2.    The appeal be fixed for hearing at 11.00 am on 23 September 2013.

3.    The parties confer with a view to settling the appeal papers by 12 September 2013.

4.    The appellants file and serve their submissions by 12 noon on 12 September 2013.

5.    The respondent file and serve its submissions by 12 noon on 18 September 2013.

6.    The appellants file and serve submissions in reply by 20 September 2013.

7.    In the event that the appellants pay the judgment debt into court, until 23 September 2013 orders 4, 5 and 6 of the orders made by Foster J on 7 August 2013 be stayed or, if the operation of those orders has commenced, their further operation be stayed.

judgment debt means the amounts referred to in order 2 of the orders made on 7 August 2013, together with interest that has accrued since that date in accordance with order 3 of those orders.

8.    The interlocutory application filed by the applicants on 27 August 2013 be otherwise dismissed.

9.    The applicants pay the respondent’s costs of the interlocutory application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1    On 7 August 2013 judgment was entered against the applicants for sums exceeding USD8,000,000 and receivers were appointed over shares held by the applicants in certain Australian companies.

2    Before reasons were given, the applicants filed a notice of appeal.

3    By an interlocutory application filed on 27 August 2013 the applicants applied for a stay of those orders pending the determination of the appeal and for the expedition of the appeal. I indicated during the hearing that I would grant expedition and a Full Court has now been constituted to hear the appeal on 23 September 2013.

4    The judgment under appeal is a judgment enforcing a final arbitral award pursuant to s 8(3) of the International Arbitration Act 1974 (Cth) (“IAA”). The award was made in London. An attempt by the applicants to have it set aside in the High Court of Justice failed: Gujarat NRE Coke Limited and Anor v Coeclerici Asia (Pte) Ltd [2013] EWHC 1987 (Comm) (“Gujarat v Coeclerici”). The applicants’ opposition to the enforcement application was based in substance on the same grounds. That was that the applicants had been denied a reasonable opportunity by the arbitral tribunal to present their case. Had this ground succeeded, the court could, in its discretion, have refused to enforce the award: IAA, ss 8(5)(c) (inability to present a case), 8 (7)(b) (contrary to public policy) and 8 (7A)(b) (breach of the rules of natural justice). The primary judge held, however, that it was not. He also held that the judgment of the High Court of Justice gave rise to an issue estoppel. Both of these conclusions are to be challenged in the appeal, as is the order appointing receivers.

Background facts

5    Gujarat NRE Coke Limited (“Gujarat Coke”) is an Indian company and Arun Kumar Jagatramka its chairman and managing director. On 15 September 2011 Gujarat Coke entered into a contract with a Singaporean company - Coeclerici Asia (Pte) Ltd (“Coeclerici”) - for the sale of metallurgical coke, a key ingredient in the production of steel (“the Purchase Agreement”). Under the terms of that agreement Coeclerici was required to make a pre-payment of USD10,000,000 and Gujarat was obliged to repay the money to Coeclerici if it did not fulfil its side of the bargain. The same day Mr Jagatramka signed a guarantee for the specified sums payable by Gujarat Coke under the Purchase Agreement. Both agreements were governed by English law and in the event of a dispute provided for arbitration by the London Maritime Arbitrators’ Association in London (“LMAA”).

6    Coeclerici paid the USD10,000,000 but Gujarat Coke did not deliver the metallurgical coke within the contractual delivery period. In accordance with the terms of the Purchase Agreement Coeclerici demanded repayment. Gujarat Coke repaid only one-fifth of the amount that was due. Consequently, on 17 August 2012, Coeclerici commenced arbitration proceedings against the company and Mr Jagatramka (hereafter “the applicants”) for the balance of USD8,000,000.

7    On 30 November 2012 the applicants filed a defence denying liability. The basis of the defence is obscure on the materials to which I was taken. It is, however, immaterial because on 17 January 2013 – four days before the hearing was due to start - the parties reached a settlement. The terms of the settlement were contained in a “Payment Agreement”, signed by the parties’ solicitors, which relevantly recited that the applicants:

acknowledge and admit that the Principal Sum [the USD8,000,000] is due and payable to Coeclerici and which amount is final and is not subject to any set off, counterclaim or other deduction whatsoever…

8    The Payment Agreement imposed obligations on the applicants to make the payments, but provided for them to be paid in instalments. The first instalment was to be USD600,000. The Agreement required that it be paid within 15 days, that is, by 1 February 2013. The second instalment of USD3,000,000 was to be paid by 28 February 2013 and the final instalment of USD4,900,000 by 28 March 2013. The Payment Agreement also provided that the arbitration proceedings be suspended for as long as the applicants continued to perform their obligations under the agreement. In the event of default, the Agreement gave Coeclerici the right to resume the proceedings and/or to bring new proceedings. Importantly, if that were to occur cl 4 of the Payment Agreement stipulated that the applicants:

[E]xpressly and irrevocably agree that Coeclerici will be entitled to an immediate consent award, without the need for any pleadings or hearings, for the following:

(a)    the Settlement Payments … less any sums paid after the date of this Payment Agreement;

(b)    all reasonable costs and expenses incurred after the date of default, including but not limited to legal costs, the costs of the Tribunal, arbitration costs and any legal or other costs and expenses incurred in enforcing this Payment Agreement and any costs and expenses incurred in obtaining such an award; and

(c)    interest at 7% from the date of default compounded quarterly until payment in full.

9    Clause 8 of the Payment Agreement stipulated that any dispute arising out of or in connection with it be referred to the arbitral tribunal.

10    The applicants failed to pay the sums due under the Payment Agreement in accordance with the payment schedule. Accordingly, on 4 February 2013 Coeclerici’s solicitors sent an email to the tribunal asking it to proceed immediately to make an award in its favour in the terms set out in cl 4 of the Payment Agreement.

11    The tribunal then emailed the applicants’ solicitor inviting him to indicate whether there was any reason why the tribunal should not now proceed as Coeclerici requested and, if so, to “make any such reason clear” by close of business the next day at the latest. The applicants’ solicitor, William Chetwood of Bentleys, replied in emails dated 4 and 5 February 2013 that he was travelling, his clients were attending a conference in India and he was unable to take instructions.

12    On 6 February 2013 Coeclerici’s solicitors pressed the tribunal to make the award, noting that no reason had been given for not doing so. Within the hour the tribunal said it would do as Coeclerici had requested.

13    At 10.06 pm on 6 February, Bentleys sent an email asserting that the applicants were not in breach of the Payment Agreement and the tribunal did not have the power to proceed to an award. They stated that the applicants had a right to present their case and were entitled to a reasonable time to properly develop their submissions. They accepted that the first payment due under the Agreement had not been made but contended that it was an implied term of the Payment Agreement that payment of the sums by the due date was conditional upon the Reserve Bank of India granting exchange control by the due dates. Alternatively, they submitted that if there were no such implied term, the applicants did not have the capacity to enter into the Agreement, “such capacity being a matter of Indian law”. I interpolate that neither proposition was apparently advanced in relation to the Purchase Agreement. Bentleys invited the tribunal to confirm that it would not proceed to an award until the applicants had had “a reasonable opportunity to present their opposition”. Coeclerici’s solicitors replied the next day rejecting each of these contentions. The applicants’ alternative submission was later abandoned.

14    There followed an exchange of correspondence with the tribunal.

15    By an email dated 12 February 2013 the tribunal informed the parties that it was proceeding to make its award. It said it had not ignored the applicants’ protests. To the contrary, it stated, it had considered them very carefully. But it said it was satisfied that if additional time were extended to the applicants to substantiate the reasons given by their solicitors “the Payment Agreement itself and the circumstances in which it was concluded would still lead us inexorably to conclude that [Coeclerici is] entitled to the Award that [it] seek[s]”.

16    Consequently, on 14 February 2013 – 10 days after Coeclerici had requested it to do so - the tribunal made its award. Without referring to the argument about the implied term, the tribunal determined that Coeclerici was entitled to rely on cl 4 of the Payment Agreement and to the relief specified in the agreement. It directed the applicants to pay the sums due under the Agreement. I should point out that at all relevant times the applicants have accepted that they are indebted to Coeclerici for the residue of the USD10,000,000.

17    In refusing to set aside the award HH Judge Mackie QC (in a passage adopted by the primary judge in his reasons) said (at [36]):

The very able and courteous submissions of their Counsel should not be allowed to disguise the fact that the [applicants] have repeatedly, deplorably and without justification failed to pay money which is plainly due to [Coeclerici].

18    In an affidavit filed in the enforcement proceeding Mr Jagatramka referred to the Indian Exchange Regulation (reg 16), which provides that where an exporter receives advance payment from a buyer outside India and the exporter is unable to make the shipment within a year of receipt of the payment “no remittance towards refund of unutilised portion of advance payment or towards payment of interest, shall be made after the expiry of the said period of one year, without the prior approval of the Reserve Bank”. He stated that Gujarat had sought that approval and he expected that, upon its receipt, the company would be in a position to “make payment to Coeclerici”. It seems that the first request was made in October 2012 but it was not until 10 July 2013 that an answer was forthcoming.

19    On 10 July 2013 the Reserve Bank of India wrote:

We accord our approval for refund of balance amount of USD 8 million and liquidated damages of USD 0.75 million in lots depending on the cash flow, on or before October 31, 2013 by the captioned exporter to M/s Coeclerici Asia (Pte) Ltd, Singapore.

20    Since the date of this letter and after the primary judge had pronounced his final orders, the applicants paid a desultory USD200,000. The current amount owing under the judgment (costs of the enforcement proceedings aside) is USD8,604,336.42 and the costs of the English proceedings (including interest) of GBP12,232.85 together with interest, which has been running since 21 August 2013.

Legal principles

21    The Court’s power to grant a stay pending the hearing and determination of an appeal derives from s 29 of the Federal Court of Australia Act (Cth). The principles governing the exercise of the Court’s discretion are uncontroversial. They may be summarised as follows:

(1)    The starting point is that the successful party is entitled to the fruits of the judgment;

(2)    The onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties; it is not enough to simply file a notice of appeal;

(3)    The applicant need not establish special or exceptional circumstances;

(4)    The Court must weigh all relevant considerations, including the competing rights of the parties and the balance of convenience;

(5)    The Court will not generally speculate about the applicant’s prospects of success in the appeal but may make a preliminary assessment as to whether there is an arguable case on the appeal and the strength of the parties’ respective cases will be relevant;

(6)    Where there is a risk that the applicant will dispose of assets if a stay is granted, a stay may be refused; and

(7)    Where there is a risk that absent a stay the appeal will be rendered nugatory, that will weigh heavily in the applicant’s favour. An appeal will be rendered nugatory where there is a real prospect that a successful appellant will not be able to be restored to its former position if the judgment against it is executed or where there is no reasonable prospect of recovering moneys paid pursuant to the judgment: Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222-3 per Dawson J.

See, for example, Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 693-695; Dunlop v Fishburn (2011) 284 ALR 482 at [17].

22    A stay may be granted conditionally or unconditionally. In an appropriate case, where funds are available, the court may require the appellant to pay the whole or part of the judgment debt to the respondent (Andrews v John Fairfax & Sons [1979] 2 NSWLR 184) or into court (Wealthsure Pty Limited v Selig [2013] FCA 628).

The issues on the appeal

23    The issues raised by the appeal are these:

(1)    Did the primary judge err in concluding that the applicants had not been afforded a reasonable opportunity to present their case before the arbitral tribunal?

(2)    Did the judgment of the High Court of Justice give rise to an issue estoppel which precluded the applicants from arguing in the enforcement proceeding that they had been denied a reasonable opportunity to present their case before the tribunal?

(3)    Did the primary judge err in appointing receivers?

The argument on the stay application

24    The applicants sought a stay of the enforcement of all the orders of the primary judge pending final determination of the appeal. In the alternative, they sought an extension of the stay of the orders relating to the appointment of receivers (orders 4, 5 and 6), which are due to expire tonight. They submitted that a stay should be granted because:

(a)    They had an arguable case on the appeal;

(b)    A freezing order is in place over shares held by companies under the control of Gujarat Coke, the value of which is likely to exceed AUD92,000,000;

(c)    They have offered to extend the freezing orders to cover Coeclerici’s costs on the appeal;

(d)    There is a risk that Coeclerici will not be able to repay the judgment debt if the appeal succeeds;

(e)    The appointment of receivers will amount to an event of default under Gujarat Coke’s Facility Agreement with Axis Bank Limited and the adverse consequences flowing from that may be irremediable; and

(f)    If the shares are sold by the receivers it may not be possible to repurchase them if the appeal is successful.

25    The stay is strenuously resisted. Coeclerici submits that there is nothing on the face of the primary judge’s reasons to suggest appealable error in relation to any of the four grounds of appeal now being pursued. It contends that the applicants are simply recalcitrant debtors who, in effect, are just stalling for time.

Is there an arguable case on the appeal?

26    To succeed on the appeal the applicants will have to demonstrate that they were denied a reasonable opportunity to be heard by the arbitral tribunal and that the decision of the High Court of Justice did not give rise to an issue estoppel. Success on one of these issues will not be enough.

27    It would not be appropriate for me in the context of a stay application to deal with the arguments at any great length. It is sufficient for me to observe that it could not be said that the applicants have a strong case.

28    Dealing with the first issue, it is trite to observe that the rules of natural justice are variable. What amounts to a reasonable opportunity to be heard will depend on the circumstances of the case.

29    In this case the relevant circumstances include the fact (as the primary judge observed) that this was an international commercial arbitration where efficiency, expedition and a minimum of formality are required. The circumstances also include the weakness of the argument the applicants wanted to agitate. The argument was emphatically rejected in the High Court of Justice. So far as I can tell it was never developed or supported in the proceeding before the primary judge. The weakness of the argument is exposed most eloquently in Coeclerici’s submissions below. It is not necessary for me to repeat those submissions here. It is enough to refer to one of them. Coeclerici submitted that the applicants’ argument that the Payment Agreement contained an implied term that payment is conditional upon Reserve Bank approval is “inconsistent with the express and unqualified provision that payments shall be made on specified due dates”. Undoubtedly it is. Under the law that governed the interpretation of the Payment Agreement it is “impossible to imply in a contract any term or condition inconsistent with its express provisions, or with the intention of the parties as gathered from those provisions”: Tamplin (FA) Steamship Co Ltd v Anglo-Mexican Petroleum Products Co Ltd [1916] 2 AC 397 at 442. In those circumstances, it is difficult to see why the primary judge was wrong to conclude that the applicants had had a reasonable opportunity to put their case before the arbitrators. The applicants’ claim that they had been denied natural justice was based only on the hearing rule. They never contended that the tribunal had approached the matter with a closed mind so that its award was infected by apprehended bias.

30    As for the question of issue estoppel, the applicants relied on a judgment of the English Court of Appeal in Svenska Petroleum Exploration v Government of Republic of Lithuania [2007] QB 886 (“Svenska”) in which a failure to challenge a Danish arbitration award before the Danish courts was held not to preclude a challenge to its recognition and enforcement in England on any of the grounds set out in s 103(2) of the Arbitration Act 1996 (the English equivalent of s 8 of the IAA). The applicants submitted that there was no binding authority on the question whether a decision of a foreign court in respect of a foreign arbitral award under its legislation creates an issue estoppel for the purposes of enforcement proceedings under the IAA.

31    Coeclerici referred to IMC Aviation Solutions Pty Ltd v Altain Khude LLC (2011) 282 ALR 717; [2011] VSCA 248 at [26] in which Warren CJ (who dissented in the result) held that the IAA contains nothing to suggest that it was intended to exclude the application of ordinary principles of estoppel. This is not exactly binding authority. Svenska is arguably distinguishable as it concerns what, in effect, is an Anshun estoppel, not an issue estoppel, and, as Coeclerici submitted, there may be good reason to distinguish the two.

32    The primary judge observed that “issue estoppel is capable of application when the issue has been determined in a prior judgment of a foreign court”, referring to Armacel Pty Ltd v Smurfit Stone Container Corp (2008) 248 ALR 573; [2008] FCA 592 (“Armacel”) at [56]-[82]. The applicants did not submit that Armacel was wrong. They submitted, however, that the issues were different in the High Court of Justice. Whilst it is true that the English Act provides for challenges to an award for “serious irregularity” and that expression is not used in the IAA, the argument that there had been a serious irregularity was the same as the argument before the primary judge. Judge Mackie QC found that there had been no serious irregularity because, “[g]iven what the parties had agreed in the Payment Agreement, the Tribunal gave them a reasonable opportunity of putting their case and adopted a suitable procedure”: Gurajat v Coeclerici at [23]. I do not discount it altogether but I doubt that there is any merit in the challenge to the primary judge’s conclusion that issue estoppel applies.

33    In any case, however, the primary judge observed (at [103]) (in a passage not apparently impugned by the notice of appeal) that even if there were no issue estoppel “it would generally be inappropriate for this Court, being the enforcement court of a Convention country, to reach a different conclusion on the same question as that reached by the court of the seat of the arbitration. It would be a rare case where such an outcome would be considered appropriate”.

34    The third issue on the appeal relates to the decision to appoint receivers. The error identified in the notice of appeal is that the primary judge erred in granting equitable relief by appointing receivers without first requiring Coeclerici to exhaust its legal remedies, including by making a charging order under s 126 of the Civil Procedure Act 2005 (NSW). Section 126 provides for a three-month moratorium on the commencement of proceedings to take the benefit of the charge.

35    It was common ground and it is undeniable that the Court had the power to make a charging order. Indeed, Coeclerici asked for one and only asked that receivers be appointed in the alternative. The applicants submitted that an order appointing receivers should not be made unless other legal remedies would be inadequate, citing Hall v Foster [2012] NSWSC 974 per Ball J. There is, however, authority to which the primary judge referred (at [110]) for the proposition that it is not necessary to establish that legal remedies are inadequate before appointing a receiver.

36    The applicants accepted that the decision to appoint receivers was a discretionary decision and was therefore only amenable to appeal on the principles set out in House v The King (1936) 55 CLR 499. When pressed to identify the error that caused the primary judge’s discretion to miscarry, counsel submitted that it was a failure to consider whether a charging order was inadequate. I would not say that the point is unarguable, but I doubt it has much to commend it in the light of the primary judge’s observation at [109] (which I did not understand to be challenged) that a charging order would require further steps to be taken under the supervision of the Court if the relevant shares were to be sold in order to satisfy the judgment. His Honour said that the appointment of receivers would be more convenient and less costly. It is to be remembered that the statutory test for the appointment of a receiver is whether it is “just or convenient to do so” (Federal Court of Australia Act 1976 (Cth), s 57(1)).

Where does the balance of convenience lie?

37    In my opinion, the balance of convenience is against the grant of a stay in the terms sought.

38    For the reasons set out above, weight must be given to the respondent’s success in the court below: Re Middle Harbour Investments Ltd (In Liq) (unreported, NSW Court of Appeal, 15 December 1976, at 2 per Mahoney JA).

39    I appreciate that the freezing order provides security over the shares held by the applicants in Gujarat NRE Coking Coal Limited (“GNCCL”) (an Australian company), but that is only one consideration.

40    The proposition that the appointment of receivers could cause irremediable prejudice must be rejected. As Coeclerici pointed out, regardless of the appointment of receivers there have already been events of default under the Facility Agreement. First, Gujarat Coke is a guarantor of the agreement. It is an event of default if a guarantor is unable or admits inability to pay its debts as they fall due (cl 24.6). Second, it is an event of default if there is a change of control (cl 24.11). Change of control is defined to mean, amongst other things, that Gujarat Coke and/or its subsidiaries (directly or indirectly) cease to own, legally and beneficially, at least 51 per cent of the share capital in GNCCL. Evidence tendered by Coeclerici on the stay application shows that another company – Jindal Steel & Power Group – now owns 52 per cent of the shares in GNCCL. The evidence suggests that the deal was done at around the time or just before the primary judge pronounced his orders. Third, there is an event of default if the ordinary shares of GNCCL cease to be listed on the Australian Stock Exchange (“ASX”) or are suspended from trading for more than ten consecutive days. On 28 June 2013 the ASX suspended GNCCL from trading and the suspension has not been lifted. It appears that the suspension was imposed at the company’s request.

41    There is no evidence of an intention on the part of any of the companies affected by the appointment of the receivers to buy back any shares that may be sold.

42    Above all, there is no evidence that the applicants cannot pay the judgment debt in its entirety and there is no dispute that they owe Coeclerici at least the balance of the USD8,000,000. On the contrary, the company’s Statement of Unaudited Financial Results for the quarter ended 30 June 2013 shows that its revenue from operations net of excise duty was the equivalent of AUD51,900,000. Its annual report for 2011-2012 lists its then current assets at the equivalent of approximately AUD360,000,000 and its total assets about twice that amount. As the primary judge noted, it claims to be the largest independent producer of metallurgical coke in India. It exports to a number of countries around the world. Mr Jagatramka, who, it will be recalled, is the guarantor of the original debt and a party to the Payment Agreement, did not testify that he, himself, did not have (or could not raise) the money to pay it.

43    The appointment of receivers can be thwarted by payment. As the Reserve Bank approval will expire by 31 October 2013, it is prudent to ensure that the monies are transferred as soon as possible.

44    The risk that Coeclerici may not be able to repay the judgment debt is removed entirely by requiring that the money be paid into Court. That is the course Coeclerici proposed and I will make an order to that effect.

Conclusion

45    Despite the short time until the appeal is to be heard and notwithstanding the existence of the freezing orders, I am not persuaded that it would be fair to grant a stay of all the orders pending final determination of the appeal. I will, however, stay the orders relating to the appointment of receivers for two more weeks conditional upon the payment into court of the judgment debt. I do so to give the applicants one final chance to pay before the receivers move in.

Associate:

Dated:    11 September 2013