McKensey v Hewitt [2002] NSWSC 145

McKensey v Hewitt [2002] NSWSC 145

The arbitrator had no power to order security for costs or require payment in advance in the circumstances; however, the court possesses such power under s 47 of the Commercial Arbitration Act. The default rule is equal contribution between the two sides; thus, the defendant is ordered to pay $5,000 as security for costs, matching the amount already paid by the plaintiffs. Costs are awarded on an interlocutory basis at 40% to the plaintiffs, reflecting partial success.

Parties
Plaintiff: Hugh Stanley McKensey; Plaintiff: Victor John Lewis; Plaintiff: Peter Charles Hicks; Defendant: Christopher Michael Hewitt
Jurisdiction
Australia
Judgment Date
11 March 2002
Procedural Posture
Motion / Post Settlement, Interlocutory Motion for Security for Costs
Outcome
Motion granted in part. Defendant ordered to pay $5,000 as security for arbitration costs and 40% of plaintiffs' costs. Leave given to amend notice of motion. Proceedings listed for mention before Registrar. Liberty to apply granted.
Legal Topics
Security for Costs, Court's Power to Order Security, Arbitrator's Authority, Costs in Arbitration
Arbitration Equity Security for Costs Court's Power to Order Security Arbitrator's Authority Costs in Arbitration

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 19 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Hugh Stanley McKensey

Plaintiff

Victor John Lewis

Plaintiff

Peter Charles Hicks

Plaintiff

Christopher Michael Hewitt

Defendant

Procedural Posture

Motion / Post Settlement, Interlocutory Motion for Security for Costs

Legal Issues

  1. 1 Did the arbitrator make a valid determination regarding costs?
  2. 2 Does the arbitrator have power to order security for his own costs or payment of costs in advance?
  3. 3 Should the court enforce the arbitrator's determination?

Ratio Decidendi

The arbitrator had no power to order security for costs or require payment in advance in the circumstances; however, the court possesses such power under s 47 of the Commercial Arbitration Act. The default rule is equal contribution between the two sides; thus, the defendant is ordered to pay $5,000 as security for costs, matching the amount already paid by the plaintiffs. Costs are awarded on an interlocutory basis at 40% to the plaintiffs, reflecting partial success.

Court Disposition

Motion granted in part. Defendant ordered to pay $5,000 as security for arbitration costs and 40% of plaintiffs' costs. Leave given to amend notice of motion. Proceedings listed for mention before Registrar. Liberty to apply granted.

Orders

  • Leave to plaintiffs to amend the notice of motion by adding an order for security for costs.
  • Order that defendant provide security for arbitration costs in the sum of $5,000.