Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC (No 2)

Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC (No 2) involved a dispute over the binding nature of an expert determination in a contract between the parties. The case reached the court following a summons by Abigroup seeking a declaration that a specific clause in the contract was void and that the dispute should be resolved via another clause. Hardesty & Hanover International LLC filed a cross-action to enforce the expert determination as final and binding. After a hearing by the Full Court, an order was made for a separate trial to determine the binding nature of the expert determination. Following the judgment, Abigroup sought costs incurred in challenging the expert determination, which it successfully argued was invalid.

The primary legal issue before the court was whether Abigroup, having successfully challenged the binding nature of the expert determination, was entitled to costs. Abigroup argued that since it prevailed on the issue and the matter was separate from other unresolved issues, it should be awarded its costs. In contrast, Hardesty & Hanover International LLC contended that the issue of costs was not before the court as it was not part of the preliminary issue argued. The court had to decide whether the unsuccessful party should bear the costs of the successful party's challenge to the expert determination.

The court found in favour of Abigroup, ruling that the unsuccessful party should bear the costs of the successful party's challenge to the expert determination. The reasoning was that Abigroup's success in proving the expert determination was invalid warranted an award of costs. The court rejected the argument that costs were not an issue in the preliminary hearing, emphasising that Abigroup's challenge to the expert determination was justified and it was entitled to its costs as a result of its success. The court's decision ensured that the unsuccessful party bore the costs of the successful party's challenge, aligning with the principle that costs generally follow the event.