Exxon v Chadtech - [1999] NSWSC 613

CITATION: Exxon v Chadtech [1999] NSWSC 613

CURRENT JURISDICTION: Equity Division - Construction List

FILE NUMBER(S): 55044/98

HEARING DATE(S): 22 June 1999

JUDGMENT DATE:
22 June 1999

PARTIES :

Exxon Coal Australia Ltd (formerly White Industries Ltd) (Plaintiff)
Chadtech Pty Limited (Defendant)

JUDGMENT OF: Einstein J

COUNSEL : P.R. Callaghan SC (Plaintiff)
D.R. Sibtain (Defendant)

SOLICITORS: Mallesons Stephen Jaques (Plaintiff)
Clayton Utz (Defendant)

CATCHWORDS:

CASES CITED: Calderbank v Calderbank [1975] 3 All ER 333
Huntsman Chemical Company v International Pools Australia (1995) 36 NSWLR 242

DECISION: 1. Summons dismissed.; 2. The plaintiff is to pay the defendant’s costs in relation to the issue raised by paragraph C11 of the contentions in the summons on an indemnity basis and the plaintiff is otherwise to pay the defendant’s costs on a party party basis.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION - CONSTRUCTION LIST

EINSTEIN J

Sydney 22 June 1999 - ex tempore
Revised 2 July 1999

55044/98: EXXON (AUSTRALIA) LTD (FORMERLY WHITE INDUSTRIES LIMITED) v CHADTECH PTY LTD
JUDGMENT

1 In proceedings number 55044 of 1998 judgment was delivered on 11 June 1999. The parties have addressed on costs. The defendant seeks an order for the payment by the plaintiff of the defendant’s costs of the whole of the proceedings on an indemnity basis. The defendant’s written submissions in paragraphs 2, 3 and 4 read as follows:

‘2. In its summons, the plaintiff contended that the arbitrator was guilty of misconduct in that he had spoken at an industry body seminar held at the offices of Clayton Utz, solicitors for the defendant in the arbitration. The plaintiff did not abandon this claim until after the filing and service of affidavits, notwithstanding an invitation from the defendant, prior to the first directions hearing, to discontinue. A substantial part of the defendant’s evidence addressed the allegations raised by the plaintiff in paragraph C11. This allegation of bias had no real prospect of success.

3. The balance of the plaintiff’s misconduct case concerned whether or not certain matters had been ventilated at the arbitration and whether or not the plaintiff had been denied natural justice. The plaintiff did not avail itself of the defendant’s early invitation to discontinue. At the hearing of the summons, the plaintiff abandoned one of its four contentions of misconduct, as it had no real prospect of success. In respect of the remaining three contentions, the Court foreshadowed the appropriateness of an indemnity costs order on the basis that it should be clear to the parties whether or not a matter was raised at the arbitration (see p 24 lines 13-45 of the transcript). It is respectfully submitted that the reasons for judgment handed down by the Court recognise the absence of substance in the plaintiff’s claim. It is submitted that an order for costs on an indemnity basis ought be made.

4. The plaintiff did not avail itself of the defendant’s early invitation to discontinue. Given the high threshold which a plaintiff must overcome in order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Exxon v Chadtech

Details

AGLC: Exxon v Chadtech [1999] NSWSC 613
Case: [1999] NSWSC 613
Decision Date: 22 June 1999

CaseChat Overview and Summary

Exxon Coal Australia Ltd, formerly known as White Industries Ltd, filed a case against Chadtech Pty Limited in the Supreme Court of New South Wales, Equity Division. The dispute involved allegations of misconduct against an arbitrator and the validity of an arbitral award. The court was tasked with determining the costs associated with the proceedings.

The legal issues before the court included the appropriateness of an indemnity costs order for the defendant regarding the allegation of arbitrator misconduct, as well as the overall costs allocation between the parties. The court examined whether the plaintiff's claims had a real prospect of success and whether they had abandoned claims without justification.

Einstein J held that the plaintiff's claim regarding the alleged misconduct of the arbitrator had no real prospect of success and was therefore unjustified. The court found that the plaintiff should have been aware of the futility of their claims. As such, the court ordered that the plaintiff pay the defendant’s costs for the issue related to paragraph C11 on an indemnity basis. For the remaining issues, the plaintiff was ordered to pay the defendant’s costs on a party-and-party basis.

The final orders of the court were that the summons were dismissed, and the plaintiff was to pay the defendant’s costs in relation to the issue raised by paragraph C11 of the contentions in the summons on an indemnity basis and the plaintiff was otherwise to pay the defendant’s costs on a party-and-party basis.

Orders