Most Read Contributor in New Zealand, September 2016
The obligations on a party seeking urgent interim relief in New
Zealand in support of foreign arbitrations has been clarified by
the High Court in a pre-Christmas injunction proceeding heard this
Chapman Tripp successfully acted for the respondent opposing the
Discovery Geo, a United States' incorporated company, sought
urgent interim orders requiring the respondent, a Singapore
incorporated company, to request the Minister of Energy to halt
consideration of the transfer of a petroleum exploration permit
pending a London ICC arbitration commenced by Discovery Geo.
In its request for arbitration, Discovery Geo claimed an
interest in the permit, and damages for its wrongful transfer, in
alleged breach of a contract governed by English Law.
As the application was brought urgently, and without service in
Singapore, it was treated as a without notice
application.2 Counsel for the respondent appeared on a
Pickwick basis (that is, to assist the Court but without
filing evidence), and subject to a protest for jurisdiction.
Despite taking less than 48 hours to produce reasons, Justice
Kós delivered a thorough judgment clarifying the obligations
on parties seeking without notice interim relief in support of
The main take-aways are:
the Court has authority under the Arbitration Act 1996 (the
Act: see Schedule 1, Article 9(2)) to make without notice orders in
support of arbitral proceedings. (This resolves a dispute between
the authors of Dicey Morris & Collins, Conflict of
Laws3 and Williams & Kawharu on
Arbitration4 in favour of the
the Court's jurisdiction over foreign parties requires
valid service in accordance with the High Court Rules,6
and can be exercised only subject to any protest to jurisdiction.
The Court will not (certainly ordinarily) make interim orders prior
to resolving a signalled protest to jurisdiction7
the purpose of interim relief is to support the arbitral
process, and not to grant relief of a kind not contemplated in the
the requirement to file an undertaking as to damages applies
equally to an application for interim measures under the Act. Where
the nature of the interim measure sought is effectively to impose a
freezing order, the undertaking must offer real protection, and
evidence (and if need be, security) must be given of the substance
behind it,9 and
as might be expected, delay in seeking urgent injunctive relief
can be fatal.
All of which is to say that care, as well as speed, is required
in seeking urgent injunctive relief, especially against foreign
1Discovery Geo Corporation v STP Energy Pte
Limited  NZHC 3549.
2Above, at .
3Dicey Morris & Collins, Conflict of Laws
(14ed, 4th Supp., 2011) at [16.085].
4Williams & Kawharu on Arbitration
(LexisNexis, Wellington, 2011) at [9.5.1].
5Discovery Geo Corporation v STP Energy Pte
Limited  NZHC 3549, at .
6Above, at .
7Above, at  – . The Court
applied Advanced Cardiovascular Systems Inc v Universal
Specialities Ltd  1 NZLR 186 (CA); Rimini Ltd v Manning
Management & Marketing Pty Ltd  3 NZLR 22 (HC); and
Hamilton v Infiniti Capital Andante Ltd HC Auckland CIV
2008-404-2304. The Court left open the correctness of Dale v
Jeffery HC Auckland CIV 2007-404-2015, 24 April 2007.
8Above, at 
9Above, at .
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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We discuss Robinson Helicopter Company Incorporated v McDermott  HCA 22 .
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