Lieschke v Lieschke (Costs) [2023] NSWSC 92

Lieschke v Lieschke (Costs) [2023] NSWSC 92

Both Malcolm and Michelle Lieschke (first and second defendants) and Errol Lieschke (plaintiff) bear some responsibility for the failed arbitration. In exercising the broad discretion under s 33D of the Commercial Arbitration Act 2010 (NSW), the Court considers it 'just' that the parties' costs of the arbitration from 14 May 2021 to 28 January 2022 be their respective costs in the new arbitration, payable only to the successful party in the new arbitration, while the costs of the interim award and pre-14 May 2021 proceedings remain reserved to the new arbitrator.

Jurisdiction
Australia
Judgment Date
16 February 2023
Procedural Posture
Costs Determination in Commercial Arbitration Proceedings / Post Judgment Application for Orders as to Costs Following Setting Aside of Arbitral Award
Outcome
Orders as to costs made under s 33D; parties to bear their own costs of the failed arbitration (from 14 May 2021 to 28 January 2022) in any new arbitration, payable in accordance with the outcome; costs of the interim award and earlier reserved for determination by a new arbitrator; first and second defendants to...
Legal Topics
['costs' 'setting Aside Arbitral Award' 'discretion Under S 33 D Commercial Arbitration Act 2010 (nsw)']
['commercial Arbitration' 'equity'] ['costs' 'setting Aside Arbitral Award' 'discretion Under S 33 D Commercial Arbitration Act 2010 (nsw)']

Case Brief

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Procedural Posture

Costs Determination in Commercial Arbitration Proceedings / Post Judgment Application for Orders as to Costs Following Setting Aside of Arbitral Award

Legal Issues

  1. 1 ['What is the appropriate costs order in relation to an arbitration that has been set aside under s 34(2) of the Commercial Arbitration Act 2010 (NSW)?' 'To what extent are the parties responsible for the circumstances leading to the arbitral award being set aside, and how should that affect apportionment of costs?']

Ratio Decidendi

Both Malcolm and Michelle Lieschke (first and second defendants) and Errol Lieschke (plaintiff) bear some responsibility for the failed arbitration. In exercising the broad discretion under s 33D of the Commercial Arbitration Act 2010 (NSW), the Court considers it 'just' that the parties' costs of the arbitration from 14 May 2021 to 28 January 2022 be their respective costs in the new arbitration, payable only to the successful party in the new arbitration, while the costs of the interim award and pre-14 May 2021 proceedings remain reserved to the new arbitrator.

Court Disposition

Orders as to costs made under s 33D; parties to bear their own costs of the failed arbitration (from 14 May 2021 to 28 January 2022) in any new arbitration, payable in accordance with the outcome; costs of the interim award and earlier reserved for determination by a new arbitrator; first and second defendants to...

Orders

  • ["Order the first and second defendants to pay the plaintiff's costs of these proceedings." 'Note that the costs of the Interim Determination remain reserved to any new arbitrator appointed pursuant to clause 24 of the Partnership Agreement.' "Pursuant to section 33D(1) of the Commercial Arbitration Act 2010, order...