Colin Joss & Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 829

Colin Joss & Co Pty Ltd v Cube Furniture Pty Ltd [2015] NSWSC 829

Although there is no presumption in favour of indemnity costs for a failed challenge to an arbitral award, Joss should have known that its public policy challenge had no realistic prospect of success because none of its complaints approached the high threshold required and it abandoned a number of manifestly insupportable contentions. The failed challenge warranted an indemnity costs order, including costs associated with Cube's security application. Interest on the award and on costs was refused because the Arbitrator had not awarded such interest, the issue had not been raised with the Arbitrator, and the proceedings had come on swiftly.

Jurisdiction
Australia
Judgment Date
26 June 2015
Procedural Posture
Commercial Arbitration Costs and Enforcement Proceedings / Post Judgment Determination of Costs and Ancillary Matters After Dismissal of Challenge to Arbitral Award
Outcome
The Amended Summons was dismissed; the arbitral determinations and awards were enforced as judgments of the Court; Joss was ordered to pay specified costs including indemnity costs for these proceedings; no orders were made for pre-judgment interest or interest on costs.
Legal Topics
['indemnity Costs' 'challenge to Arbitral Award' 'public Policy Exception' 'recognition and Enforcement of Arbitral Awards' 'interest on Award and Costs' 'security for Costs']
['commercial Arbitration' 'civil Procedure' 'costs'] ['indemnity Costs' 'challenge to Arbitral Award' 'public Policy Exception' 'recognition and Enforcement of Arbitral Awards' 'interest on Award and Costs' 'security for Costs']

Case Brief

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Procedural Posture

Commercial Arbitration Costs and Enforcement Proceedings / Post Judgment Determination of Costs and Ancillary Matters After Dismissal of Challenge to Arbitral Award

Legal Issues

  1. 1 ['Whether an unsuccessful challenge to an arbitral award under the public policy exception gives rise to a presumption in favour of indemnity costs absent exceptional or special circumstances.' 'Whether indemnity costs should be ordered against Joss in the circumstances of its failed challenge to the arbitral award.' "Whether costs of Cube's application for security under s 36(2) of the Commercial Arbitration Act 2010 (Cth) should be included in the costs order." 'Whether Cube should receive interest on the amount of the award or on costs paid in relation to the arbitration and award.']

Ratio Decidendi

Although there is no presumption in favour of indemnity costs for a failed challenge to an arbitral award, Joss should have known that its public policy challenge had no realistic prospect of success because none of its complaints approached the high threshold required and it abandoned a number of manifestly insupportable contentions. The failed challenge warranted an indemnity costs order, including costs associated with Cube's security application. Interest on the award and on costs was refused because the Arbitrator had not awarded such interest, the issue had not been raised with the Arbitrator, and the proceedings had come on swiftly.

Court Disposition

The Amended Summons was dismissed; the arbitral determinations and awards were enforced as judgments of the Court; Joss was ordered to pay specified costs including indemnity costs for these proceedings; no orders were made for pre-judgment interest or interest on costs.

Orders

  • ['The Amended Summons is dismissed.' 'The Security for Costs Determination, dated 16 October 2013, the Interim Award, dated 27 August 2014, and the Final Award, dated 12 January 2015, will be enforced as if judgments of this Court.' 'The plaintiff/cross-defendant is to pay the costs of the defendant/cross-claimant...