Joban Kosan Co Ltd v Flame SA [2018] NSWSC 1754

Supreme Court New South Wales

Medium Neutral Citation: Joban Kosan Co Ltd v Flame SA [2018] NSWSC 1754 Hearing dates: 6 November 2018 Date of orders: 15 November 2018 Decision date: 15 November 2018 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following orders:

(1) The proceeding be permanently stayed pursuant to s 7(2) of the International Arbitration Act 1974 (Cth).

(2) The plaintiff shall pay the defendant's costs of the motion as agreed or, in default, as assessed, forthwith. Catchwords: COSTS – application for permanent stay of proceedings – s 7(2) of International Arbitration Act 1974 (Cth) – consent to permanent stay – arbitration clause in contract – dispute as to costs of the motion – unnecessary to resolve whether plaintiff as respondent on the motion acted unreasonably – high degree of certainty that the motion would have been successful if fully tried – defendant awarded costs of the motion – costs payable forthwith Legislation Cited: Civil Procedure Act 2005 (NSW) International Arbitration Act 1974 (Cth) Migration Act 1958 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Carob Industries Pty Ltd v Simto Pty Ltd (1997) 18 WAR 1 Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Texts Cited: J W Carter, Contract Law in Australia (LexisNexis Butterworths, 7th ed, 2018) Category: Costs Parties: Joban Kosan Co Ltd (Plaintiff / Respondent) Flame SA (Defendant / Applicant on Motion) Representation: Counsel: L Robb Vujcic (Plaintiff / Respondent) G Nell SC (Defendant / Applicant on Motion)