Altain Khuder LLC v IMC Mining Inc (No. 2)

Altain Khuder LLC sought to enforce an arbitral award against IMC Mining Inc in the Supreme Court of Victoria. The primary issue before the Court was whether it should make an indemnity costs order against IMC Mining Inc. The court had to consider the principles for granting indemnity costs, the nature of the case, and the circumstances under which such an order might be justified. The Court assessed whether there were special circumstances that warranted an indemnity costs order, drawing on precedents from Australian and international cases.

In determining whether special circumstances existed to justify an indemnity costs order, the Court considered the case of Colgate Palmolive Company v Cussons Pty Ltd. This case established that indemnity costs can be awarded in exceptional cases where the conduct of the losing party is egregious. The Court also referred to Ugly Tribe Co Pty Ltd v Sikola, which highlighted the importance of considering the conduct of the parties and the nature of the dispute. Furthermore, the Court reviewed several international cases such as A v R, Wing Hong Construction Limited v Tin Wo Engineering Company Limited, Taigo Ltd v China Master Shipping Ltd, and Hung Wan Construction Co Ltd v Hong Kong Housing Authority, which provided guidance on the application of indemnity costs in arbitration matters. The Court also took into account the Civil Justice Reform (Hong Kong) and relevant rules from the High Court of Hong Kong and the Civil Procedure Act 2010 (Vic).

The Court concluded that there were special circumstances justifying an indemnity costs order. IMC Mining Inc's conduct was deemed to be vexatious and oppressive, and the Court found that it had acted in bad faith. These factors warranted the imposition of indemnity costs to compensate Altain Khuder LLC for the expenses incurred. The Court ordered IMC Mining Inc to pay Altain Khuder LLC's costs on an indemnity basis.