Australian Remediation Services v Earth Tech Engineering [2005] NSWSC 805

New South Wales Supreme Court

CITATION : Australian Remediation Services v Earth Tech Engineering [2005] NSWSC 805

HEARING DATE(S) : 04/08/05

JUDGMENT DATE : 5 August 2005

JUDGMENT OF : White J

DECISION : Plaintiff pay the defendant's costs; exhibits may be returned.

CATCHWORDS : PRACTICE AND PROCEDURE - Costs - Dispute arising from appointment of arbitrator - Where action settled - No trial on the merits - Where communication between solicitors should have resolved the issue - Failure to agree due largely to plaintiff imposing unreasonable conditions - Held that proceedings were unreasonably brought by the plaintiff - Plaintiff to pay defendant's costs.

Commercial Arbitration Act 1984 (NSW) LEGISLATION CITED : Building & Construction Industry Security of Payment Act 1999 (NSW)

CASES CITED : Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1996) 186 CLR 622

Australian Remediation Services Pty Ltd PARTIES : v Earth Tech Engineering Pty Ltd

FILE NUMBER(S) : SC 55060/05

Plaintiff: M S Jacobs QC, P J Bambagiotti COUNSEL : Defendant: M Christie

Plaintiff: Meriton Apartments Pty Ltd - Daniel Grynberg SOLICITORS : Defendant: Allens Arthur Robinson

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY & CONSTRUCTION LIST

WHITE J

Friday, 5 August 2005

55060/05 Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd JUDGMENT 1 HIS HONOUR: This matter was listed for hearing before me yesterday. After the evidence and the submissions for the plaintiff had been completed, the parties reached an agreement for the progress of the arbitration before Mr Callaghan SC which rendered it unnecessary for the plaintiff to pursue the claims in the amended summons. Accordingly the amended summons was dismissed. The only remaining issue is costs. 2 The principles upon which costs should be determined when a party elects not to pursue a claim because it has achieved the relief sought in the action by settlement or other extra-curial means were described by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1996) 186 CLR 622 at 624-625 as follows: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.