Jamac Construction Group Pty Ltd v De Mol Investments Pty Ltd
[2013] WASC 360 (S)
•8 NOVEMBER 2013
JAMAC CONSTRUCTION GROUP PTY LTD -v- DE MOL INVESTMENTS PTY LTD [2013] WASC 360 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 360 (S) | |
| Case No: | CIV:1873/2013 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 8/11/13 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Costs in the cause of new proceedings | ||
| B | |||
| PDF Version |
| Parties: | JAMAC CONSTRUCTION GROUP PTY LTD DE MOL INVESTMENTS PTY LTD |
Catchwords: | Arbitration Stay application Resulting orders and costs dealt with on the papers Turns on its own facts |
Legislation: | Nil |
Case References: | Jamac Construction Group Pty Ltd v De Mol Investments Pty Ltd [2013] WASC 360 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DE MOL INVESTMENTS PTY LTD
Defendant
Catchwords:
Arbitration - Stay application - Resulting orders and costs dealt with on the papers - Turns on its own facts
Legislation:
Nil
Result:
Costs in the cause of new proceedings
Category: B
Representation:
Counsel:
Plaintiff : Mr J A Thomson SC
Defendant : Mr C G Colvin SC
Solicitors:
Plaintiff : Tottle Partners
Defendant : Hotchkin Hanly
Case(s) referred to in judgment(s):
Jamac Construction Group Pty Ltd v De Mol Investments Pty Ltd [2013] WASC 360
1 KENNETH MARTIN J: In accord with my reasons delivered 27 September 2013, Jamac Construction Group Pty Ltd v De Mol Investments Pty Ltd [2013] WASC 360 [21], favouring a temporary stay of arbitration ARB 3654 commenced by Jamac, the parties have conferred and have now agreed dispositive orders giving effect to those reasons. But they remain in dispute over one residual issue concerning the costs of that application.
2 The parties are otherwise agreed the appropriate dispositive orders implementing the reasons are:
1. until further order, arbitration ARB 3654 be stayed; and
2. there be liberty to apply on 14 days' notice.
3 The residual clash as to an appropriate costs disposition on that application begins, essentially, with De Mol's submission that it was, at the end, the successful party, being vindicated by my 27 September 2013 reasons favouring the stay of the entirety of ARB 3654. Hence, De Mol contends for an award of taxed costs in its favour as the discretionary outcome which is appropriate as a matter of principle.
4 However, Jamac disagrees and responds that it has now commenced new proceedings in this court (CIV 2619 of 2013) by which it now pursues claims against De Mol which are essentially the same as those it advanced in ARB 3654. I foreshadowed this potential scenario under my reasons at [15], [17(3)] and [19] in the context of observations as to the desirability of all disputes between all relevant parties both in the Rodgers litigation and in the arbitration being resolved pragmatically in one forum, namely this court.
5 Jamac's written submissions as to costs (correctly) observe that I did not need to reach a final evaluation concerning two of its principal underlying submissions upon the applications in order to reach a conclusion that a temporary stay of the entire ARB 3654 was appropriate.
6 I recognise the force of the normative principle that a successful party to a contested application in litigation will usually receive an award of its taxed costs. But that principle is not applicable to every case. Ultimately, an award of costs is a matter for the exercise of judicial discretion on a case by case basis.
7 In the particular circumstances of this case, the temporary stay I have assessed as appropriate concerning all of ARB 3654, is a determination grounded upon pragmatism and convenience, rather than a conclusion reflecting any final merits determination of the parties' underlying disputes in ARB 3654. The underlying disputes remain very much unresolved to be determined on another day.
8 Now that new proceedings have been commenced in this court by Jamac against De Mol, there presents for this court a viable forum within which the ultimate taxed costs of the disputed application which I resolved on 27 September 2013 can lie. I propose to case manage the new proceedings in my CMC list in conjunction with the Rodgers litigation.
9 In the circumstances, I am persuaded by Jamac's arguments that the appropriate order as to costs in the exercise of the court's discretion is for the costs of the applications to lie in the cause of the new proceedings now commenced by Jamac in this court.
10 Accordingly, beyond the two orders agreed between the parties I will further order that:
3. the taxed costs of the disputed application resolved by my reasons of 27 September 2013 shall be costs in the cause of CIV 2619 of 2013.
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