EDGEN Murray Pte Ltd v Clough Projects International Pty Ltd

In the case of Edgen Murray Pte Ltd v Clough Projects International Pty Ltd, the parties were engaged in a dispute concerning contractual obligations and associated costs. The matter was heard by the Supreme Court of Victoria, where the primary issue was the entitlement of the plaintiff, Edgen Murray, to recover mediation costs claimed against the defendant, Clough Projects. Edgen Murray argued that it was entitled to recover these costs, while Clough Projects contended that the costs were not recoverable. The court was required to determine whether the mediation costs claimed by Edgen Murray could be recovered as part of the costs of the proceeding.

The court found that the mediation costs were not recoverable as they were considered "thrown away" costs. This determination was based on the principle that costs that a party has incurred but has no prospect of recovering are considered wasted or thrown away. The court reasoned that because the mediation did not result in a settlement and Edgen Murray had no reasonable prospect of recovering the mediation costs through any other means, these costs could not be recovered as part of the proceeding. The court also highlighted that the costs were not incurred in the pursuit of a claim that was ultimately successful, further supporting the conclusion that they were thrown away.

Consequently, the court held that Edgen Murray was not entitled to recover the mediation costs as part of the costs of the proceeding. The court ordered that Edgen Murray was to pay an allowance for the costs thrown away forthwith. This decision underscores the importance of the "thrown away" costs principle in determining the recoverability of costs in litigation.