Federal Court of Australia

LandOcean Hong Kong Investment Holding Group Ltd v West Indies Exploration Company Ltd (No 2) [2026] FCA 1574

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application dated 16 September 2026 be dismissed.

2.    The respondents pay the applicants’ costs of the interlocutory application.

THE COURT NOTES THAT:

A.    The dismissal in order 1 above has the effect of terminating the stay of orders 1 to 4 of the orders made on 14 August 2026 (granting leave to enforce the foreign arbitral award as if it were a judgment of the Court and entering judgment for the applicants against the respondents) brought about by order 6 of those orders.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    I previously made ex parte orders enforcing an arbitral award in the applicants’ favour against the respondents. In the customary way, I stayed the enforcement orders to enable the respondents to be given notice of the proceeding and for them to apply within a stipulated period to set the orders aside. See LandOcean Hong Kong Investment Holding Group Ltd v West Indies Exploration Company Ltd [2026] FCA 1152.

2    The respondents have applied by interlocutory application for reconsideration of the orders and that they be set aside. For the reasons that follow, the interlocutory application should be dismissed with costs. That has the effect of terminating the stay of the enforcement orders.

Background

3    The first applicant is LandOcean Hong Kong Investment Holding Group Ltd (LandOcean HK). It is incorporated in Hong Kong.

4    The second applicant is New JCM Group Co Ltd (New JCM), which was formerly known as LandOcean Energy Services Co Ltd. It is incorporated in the People’s Republic of China. New JCM owns all the shares in LandOcean HK. The applicants are thus in common ownership.

5    The first respondent is West Indies Exploration Company Ltd (West Indies Exploration). It is incorporated in the Republic of Trinidad and Tobago.

6    The second respondent is Star Phoenix Group Ltd (Star Phoenix). It was previously named Range Resources Ltd. Star Phoenix is incorporated in Australia and has its registered office in Perth, Western Australia. Star Phoenix and West Indies Exploration are in common ownership.

7    On 2 September 2019, New JCM and LandOcean HK entered into a share purchase agreement with Star Phoenix and West Indies Exploration. Under the agreement, LandOcean HK was to acquire from West Indies Exploration all the shares in Range Resources Trinidad Ltd (RRTL).

8    The original agreement was amended on several occasions by side letters. Under the amended agreement, New JCM and Star Phoenix assumed the liabilities of their wholly owned subsidiaries (ie LandOcean HK and West Indies Exploration, respectively) under the agreement and bound them to resolve any disputes under the same arbitration agreement. Needless to say, disputes arose which were referred to arbitration in London, United Kingdom. The arbitration was commenced in July 2021.

9    The final arbitral award was published on 16 October 2024. The tribunal declared that West Indies Exploration and Star Phoenix are jointly and severally liable with respect to the “2020 Payments Counterclaim”, interest thereon, and for arbitration costs and legal costs. Leaving interest and costs to one side, the tribunal made an award to the effect that West Indies Exploration and Star Phoenix are to pay to LandOcean HK and New JCM TTD4,924,951 (ie Trinidad and Tobago dollars) in respect of the 2020 Payments Counterclaim.

10    In enforcing the award on an ex parte basis, I entered judgment in favour of LandOcean HK and New JCM against West Indies Exploration and Star Phoenix, jointly and severally, in the AUD equivalent of that amount. It is that judgment that is at the heart of the respondents’ application to set aside the orders previously made by me.

The respondents’ case

11    The respondents resist enforcement of the arbitral award on the basis that enforcement amounts to double recovery. They submit that to allow such a double recovery would be contrary to public policy within the meaning of s 8(7)(b) of the International Arbitration Act 1974 (Cth). The respondents submit that the alleged double recovery arises in the following way.

12    The 2020 Payments Counterclaim that was upheld by the tribunal arose from four payments for oil sold by RRTL to a third party in the period April to August 2020 totalling TTD4,924,951. Instead of the payments being made by the third party to RRTL, they were diverted to Range Resources Drilling Services Ltd (RRDSL), a company in common ownership with West Indies Exploration and Star Phoenix.

13    At that time, completion under the share sale agreement had occurred with the result that RRTL was no longer owned by West Indies Exploration but was owned by LandOcean HK. However, for reasons that it is not necessary to explore, West Indies Exploration and Star Phoenix remained in control of RRTL on the terms of the above purchase agreement. The tribunal found that West Indies Exploration and Star Phoenix instructed the payments to be made to RRDSL rather than to RRTL in breach of the share purchase agreement (as amended by the side letters). The tribunal held that West Indies Exploration and Star Phoenix were liable under the agreement to pay an equivalent amount to their counterparties, namely LandOcean HK and New JCM.

14    In the meanwhile, in August 2022, RRDSL commenced a proceeding against RRTL in the High Court of Justice of the Republic of Trinidad and Tobago. RRDSL claimed the outstanding balance on a loan to RRTL. The latter admitted part of the amount that was said to have been advanced to it, but claimed that the whole amount had been repaid by the benefit received by RRDSL from the same payments that were the subject of the 2020 Payments Counterclaim in the arbitration. RRTL counterclaimed for the balance in its favour.

15    Judgment was delivered on 18 June 2026 by his Lordship the Honourable Mr Justice Devindra Rampersad. His Lordship found that the sum advanced by RRDSL to RRTL on loan was the admitted sum of TTD2,916,573. RRDSL contended that the sum that it had received, TTD4,924,951, was net revenue from oil sales whereas RRTL contended that the payments amounting to that sum were repayment of the loan which discharged and exceeded its liability. The Court held that the payments were properly to be characterised as repayment of the sums advanced, and gave judgment in favour of RRTL for the balance overpaid, namely TTD2,008,377.

16    Thus, the respondents submit that the applicants’ interests (ie LandOcean HK, New JCM and RRTL) have received the benefit of the payments amounting to TTD4,924,951 twice, once in the arbitral award and once in the judgment of the High Court of Justice of Trinidad and Tobago. They submit that enforcement of the arbitral award by this Court would be contrary to public policy in those circumstances.

17    In the alternative, the respondents submit that enforcement of the award should be further stayed pending the determination of RRDSL’s appeal to the Court of Appeal of Trinidad and Tobago. The appeal is listed for hearing on 8 December 2026.

Consideration

18    It is uncontroversial that because the enforcement orders were made ex parte, the respondents are entitled to have the application for enforcement reheard with the benefit of their evidence and submissions: Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; 12 VR 639 at [20]-[21] (Gillard AJA, Ormiston and Buchanan JJA agreeing).

19    On that rehearing, the applicants must establish their entitlement to enforcement, but the respondents bear the burden of establishing any ground for refusal under ss 8(5) or 8(7): Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110; 290 FCR 298 at [19]. It is uncontroversial before me that the grounds for enforcement have been established, leaving only the question whether the exception to enforcement in s 8(7)(b) which is relied on by the respondents has been made out.

20    Section 8(7)(b) provides that the court may refuse to enforce the award if it finds that to enforce the award would be “contrary to public policy”. Section 8(7A) gives some indication of the stringent content of “public policy” in this context by providing that it would be contrary to public policy to enforce a foreign award if the making of the award was induced or affected by fraud or corruption or if a breach of the rules of natural justice occurred in connection with the making of the award.

21    The public policy ground for not enforcing an award mirrors and implements Art V Rule 2(b) of the New York Convention (ie the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, Sch 1 to the Act). It also mirrors Art 36(1)(b)(ii) of the UNCITRAL Model Law on International Commercial Arbitration (Sch 2 to the Act).

22    In TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 (Allsop CJ, Middleton and Foster JJ) a number of important points were made about the public policy ground in s 8(7)(b). A degree of international harmony and concordance of approach to international commercial arbitration must so far as the language of the section permits be maintained (at [75]). There is widespread international judicial support for an approach that confines the scope of public policy (at [75]). That scope “is limited to the fundamental principles of justice and morality of the state, recognising the international dimension of the context” (at [76] read with [77]). There must be compelling reasons before enforcement of an award can be refused on public policy grounds (at [79]). “Before a Convention jurisdiction can, in keeping with its being a party to the Convention, refuse enforcement of a Convention award on public policy grounds, the award must be so fundamentally offensive to that jurisdiction’s notions of justice that, despite its being a party to the Convention, it cannot reasonably be expected to overlook the objection” (at [79] quoting Bokhary PJ in Hebei Import & Export Corporation v Polytek Engineering Company Ltd [1999] 2 HKC 205 at 216).

23    There are a number of difficulties with the respondents’ reliance on the public policy exception to enforcement. They demonstrate that to enforce the award does not come anywhere close to being so fundamentally offensive to Australian notions of justice such that the objections to enforcement cannot be overlooked.

24    First, the respondents complain about the “overlap” between the liability that has been determined by the arbitral tribunal and by the Court in Trinidad and Tobago. However, that submission is premature because RRDSL has filed an appeal against the judgment of the Court in which it contends that the payments in question were wrongly characterised as repayments of the loan and were thus wrongly credited to the loan. The notice of appeal relies on and refers to the arbitral award. If the appeal is successful, then there will be no overlap.

25    Second, and still with reference to the alleged “overlap”, each debt is independent of the other – the causes of action and the identities of the debtor/s and creditor/s are in each case different. The Tribunal awarded the sum in question as a contractual debt between LandOcean HK and New JCM, on the one hand as creditors, and West Indies Exploration and Star Phoenix, on the other as debtors. In contrast, the Court credited the sum in question and ordered a repayment of the balance overpaid as arising under a loan between RRTL and RRDLS, with RRTL ultimately being the creditor and RRDLS the debtor in respect of the claim in restitution that underlies the judgment.

26    Third, even if the appeal to the Court of Appeal fails, and there is no further appeal, or successful appeal, to the Judicial Committee of the Privy Council, there will at that stage still be no double recovery. Any “double recovery” can only arise after one or other of the identified debts has been paid. Thus, if there is a proper basis to resist recovery under, say, the judgment of this Court enforcing the award because of the overpaid balance on the loan that RRDSL has been found to owe RRTL, the proper time to raise that will be when that balance has been paid. That might be done, for example, by resisting the issue of a writ of execution or seeking to set aside a writ of execution. But no question of double recovery arises at this stage of recognition and enforcement of the award – it can only arise at the stage of execution after there has been some recovery on the other judgment debt.

27    Fourth, in truth what the respondents seek to do by challenging enforcement of the arbitral award under the public policy exception is to relitigate the merits that were determined in the award; they ask in effect that the Court recognise a substantive defence to the 2020 Payments Counterclaim that they could have run in the arbitration – they knew what RRTL was claiming in the Trinidad and Tobago court proceeding before the arbitration was complete. In that regard, the arbitral hearing was completed on 29 March 2024 and final submissions were not made until 7 June 2024 (as appears from the award at [80] and [85]). RRTL’s counterclaim in the court proceeding, in which explicit reference is made to the arbitration, was filed on 12 December 2022.

28    The short point is that the respondents’ contentions with regard to “overlap” and “double recovery” which they raise to resist enforcement were available to them in the arbitration, and they were available to RRDSL in the court proceeding in Trinidad and Tobago. Indeed, RRDSL relied on the fact of the award in resisting RRTL’s counterclaim (as recorded in the judgment at [15]) and it relies on it in its notice of appeal. The public policy exception to enforcement does not provide a basis to relitigate substantive matters that were determined in the award, or to raise contentions with regard to the merits that could have been raised in the arbitration.

29    For those reasons, the award must be enforced.

30    There is also no basis to extend the stay of the enforcement orders pending the appeal in Trinidad and Tobago. That is because the contentions about overlap and double recovery are premature, as explained at [24] and [26] above, and that even after the appeal there would be no basis on which the enforcing court could enter upon the merits of what the tribunal decided, as explained at [27]-[28] above.

Disposition

31    In the result, the respondents’ interlocutory application must be dismissed with costs.

Associate:

Dated:    22 October 2026