In the matter of Jamac Excel Logistics Pty Ltd ACN 165 961 268)

The plaintiff is incorporated under the law of the People's Republic of China. The first defendant, Jamac Excel Logistics Pty Ltd, is a company incorporated under the rules of Australia. At all material times the sole director of the first defendant was Mr Yang Yong Jian aka Jason Yang.

By a contract made on 20 April 2017, the plaintiff agreed to purchase from the first defendant 3,500 dry metric tons (+/- five percent) of zircon sand on certain terms and conditions.

Clause 14 of the contract provided:

The plaintiff paid certain amounts under the contract but it appears that no sand was shipped to it.

On 18 October 2017, the plaintiff submitted an arbitration application to the China International Economic and Trade Arbitration Commission (CIETAC) seeking termination of the contract and damages of USD650,000. The first defendant filed a defence and cross-claim in the arbitration, however, the cross-claim was dismissed for non-payment of the relevant fee. On occasions, the first defendant was represented during the arbitration but on others it was not.

On 26 April 2019, the Arbitral Tribunal issued its award. The Tribunal concluded that the first defendant should:

On 10 June 2019, the first defendant was deregistered after a form 6010 was lodged by Mr Yang.

On 29 October 2019, the plaintiff made an application to reinstate the first defendant to the register. An order for reinstatement was made on 25 June 2020 and was notified to Mr Yang on 6 July 2020.

In these proceedings the plaintiff seeks an order under s 8 of the International Arbitration Act 1974 (Cth) (the Act) to enforce the Award as if it were a judgment of this Court. Section 8 of the Act relevantly provides:

At the hearing of this matter, Mr Yang, appeared on behalf of the first defendant. He cannot speak English and he made submissions to the Court through an interpreter. Initially, I granted leave to Mr Yang to appear on behalf of the first defendant. However, it became apparent that Mr Yang was not in a position to assist the Court in determining whether the orders sought by the plaintiff should be made and I revoked that leave. Despite revoking that leave, I permitted Mr Yang to make some submissions to the Court in response to those made by Mr Hogan-Doran on behalf of the plaintiff.

It appears that Mr Yang's principal contention is that the Court should not make orders under s 8 of the Act because that arbitration occurred in accordance with Chinese law, rather than in accordance with the rules of the International Chamber of Commerce and subject to the interpretation of INCOTERMS 2010 edition as required by cl 14 of the agreement.

Two points may be made about that submission. First, it does not appear to be a ground for refusal to make orders under s 8 of the Act. In any event, a reading of the award does not support that submission. In those circumstances, I can see no reason why orders should not be made under s 8 in this case.

It is plain from the evidence before the Court that the other conditions for making such an order have been satisfied.

By an interlocutory process filed on 23 July 2020, the plaintiff also seeks leave to amend its originating process to add claims seeking orders that the first defendant be wound up. In my opinion, it is appropriate to grant that order.

In making submissions for why he should be entitled to represent the first defendant, Mr Yang said that neither he, and I infer, nor the company could afford to pay for a lawyer. It seems strongly arguable that in view of the judgment against the first defendant that it is insolvent. In those circumstances, it seems appropriate that the question whether the first defendant should be wound up should be determined sooner rather than later.

The orders proposed by the plaintiff provide that the amended originating process be made returnable before the Corporations List Registrar at 9am on 24 August 2020 for further directions. That seems to me to be an appropriate course to take.

In those circumstances, I make the following orders: