Recent Cases

Lieschke v Lieschke [2023] NSWCA 241 (13 October 2023) (Leeming, Payne and Beech-Jones JJA)


COMMERCIAL ARBITRATION — appeal against decision to set aside arbitral award — dissolution of family farming partnership — parties retained accountants to review partnership accounts — respondent filed amended statement under s 23(1) of Commercial Arbitration Act 2010 (NSW) seeking finding that certain properties were partnership assets and variations to partnership accounts — parties otherwise assumed correctness of partnership accounts — interim award rejected claim that properties were partnership assets — respondent retained new solicitors and additional accountant — new accountant contended for completely different accounting approach — respondent sought to introduce new “case” based on new accountant’s report into accounting conclave convened between existing accountants to resolve remaining accounting issues — no application to amend statement under s 23(1) — arbitrator made order precluding existing accountants from conferring with new accountant — final award made — primary judge held award should be set aside on basis that respondent was unable to present his case and award was contrary to public policy — Commercial Arbitration Act 2010 (NSW), ss 34(2)(a)(ii) and (b)(ii) — reasonable opportunity to present a “case” does not extend to putting an available case not adverted to in statement filed under s 23(1) nor sought to be subject to amendment under s 23(3) — amended points of claim and submissions identified each party’s “case” and issues in dispute — entitlement to reasonable opportunity does not protect a party from their own “strategic choices” — leave to appeal granted — appeal allowed — proceedings seeking to set aside arbitral award dismissed — respondent to pay applicants’ costs