Philip Shepherd QC was successful in continuing an anti-suit injunction to restrain the defendant Michael Wilson & Partners Limited (“MWP”) from continuing proceedings in New South Wales on the basis that such proceedings were brought in breach of arbitration agreements whose ambit were wide enough to encompass the disputes that now formed the subject of the legal proceedings.
There was also held to be an abuse of process and MWP was issue estopped from raising the issues brought in the NSW proceedings.
The abuse of process was because the NSW proceedings amounted to a collateral attack on a final and binding London arbitration award in favour of Mr Emmott which MWP had failed to pay. The issue estoppel arose because MWP was attempting to raise in the new proceedings issues that had already been decided against MWP in the arbitration.
O’Farrell J held that it did not matter that MWP was suing as assignee in respect of alleged claims for contribution. What mattered was that MWP was seeking to advance those claims for its own benefit. The Court took into account that MWP obtained jurisdiction in the Second NSW Proceedings by falsely representing that Mr Emmott was domiciled and resident in Australia. That dishonesty on the part of MWP was material to the exercise of the Court’s discretion.
Philip Shepherd QC was instructed by Kerman & Co.