KDR Gold Coast Pty Ltd v CPB Contractors Pty Ltd

In the case of KDR Gold Coast Pty Ltd v CPB Contractors Pty Ltd, the applicant sought an order for specific performance and a declaration in relation to a contractual dispute resolution process it had commenced involving the respondent. The application was adjourned part-heard, by consent, pending the parties’ anticipated execution of an expert determination agreement on terms satisfactory to each of them. The agreement was executed, obviating any need for the making of an order or declaration. The respondent submitted that the applicant was not successful and should be ordered to pay its costs.

The court considered the appropriate costs order, noting that it has a wide discretion in awarding costs and must exercise the discretion judicially and by reference to relevant considerations. The primary purpose of any costs order is to protect a successful party from the undue depletion of its resources from the pursuit of its lawful rights or the defence of its lawful conduct. It is not to punish an unsuccessful (or insufficiently successful) party. The court found that KDR has obtained the object it sought – CPB’s signature on the Expert Determination Agreement with a description of the Dispute by reference to the notice of dispute – and CPB’s purported “dispute” about the description of the Dispute has vanished along with its purported notice of escalation.

The court rejected CPB’s submission that the applicant was not successful on its application and found that KDR has succeeded completely in obtaining the outcome it sought in the proceeding. The court ordered that the respondent pay the applicant’s costs of the proceeding to be assessed on the standard basis.