Vietnam Oil and Gas Group v Joint Stock Company (Power Machines – ZTL, LMZ, Electrosila Energomachexport)

Vietnam Oil and Gas Group applied in HC/OA 346/2024 to set aside an arbitral award in favour of Joint Stock Company (Power Machines – ZTL, LMZ, Electrosila Energomachexport), heard with its application in HC/SUM 988/2024 to set aside leave to enforce the award. After a hearing on 19 July 2024, the High Court judge held on 23 July 2024 that grounds to set aside existed but, instead of setting the award aside, remitted the matter to the arbitral tribunal. Both sides appealed. In CA/CA 48/2024 Vietnam Oil and Gas argued that the judge had no power to remit because Art 34(4) of the UNCITRAL Model Law requires a request by a party, and that no request was made.

The judge's notes of the 19 July hearing recorded the award creditor's counsel as submitting that if the court found a breach the matter should be remitted. Vietnam Oil and Gas said that submission was never made. Without raising this with the judge, it applied to the Court of Appeal in Summons No 2 of 2025 for leave to adduce, as further evidence on appeal, notes taken by two of its solicitors at the 19 July and 23 July hearings. There were no audio recordings, so the judge's notes were the official record.

1. Whether the ordinary or the modified Ladd v Marshall test governs admission of solicitors' notes of hearings below.
2. Whether the solicitors' notes were material to the appeal against the remission order.
3. What procedure a party must follow to challenge the judge's notes as the official record of a hearing.

Under s 59 of the Supreme Court of Judicature Act, evidence of matters after the decision is admitted on the modified test. Because the notes, like the judge's notes, came into being only after the hearings, and no party would ask for the judge's notes before a decision, the non-availability condition could not sensibly apply; in substance the modified test governed, leaving materiality and reliability.

The notes failed on materiality. The notes of the 23 July hearing were irrelevant because no error was alleged in the judge's record of that hearing. As for the 19 July notes, the main appeal argument was that a remission request had to be made by summons and affidavit, which made what was said orally beside the point. On the alternative argument, the judge had recorded a submission of the same substance elsewhere in the hearing, which the applicant did not dispute and which its own solicitor's notes recorded in more detail, in answer to the judge's direct question on remission. The real question on appeal was whether leaving remission to the judge amounted in law to a request.

More fundamentally, the challenge could not be raised for the first time on appeal. Applying Chan Kok Kiang, decided by the court more than five decades ago, a party who disputes the official record should raise it, with its evidence, with the other side and the judge at the earliest opportunity, so that it is resolved while memories are fresh and the judge can amend the record if satisfied. The judge is better placed than an appellate court, and fairness requires that the judge be heard on what may imply a breach of natural justice. The court also found the delay inordinate: the applicant's counsel objected at the 23 July hearing itself, yet it first raised the alleged error on 30 December 2024.

A single judge of the Court of Appeal dismissed the application for leave to adduce both sets of solicitors' notes and fixed costs at $12,000 (all-in), payable by Vietnam Oil and Gas to the respondent.