John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [No 2] [2015] NSWSC 564

John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [No 2] [2015] NSWSC 564

The proceedings against KBR should be stayed rather than dismissed because a stay is consistent with referral to arbitration under s 8(1), is supported by the Court's statutory power under s 67 of the Civil Procedure Act 2005 (NSW), causes no identified prejudice to KBR, and may preserve utility for John Holland. Indemnity costs were refused because the A v B presumption is not the law in New South Wales, would improperly fetter the Court's costs discretion, and John Holland's opposition was reasonable; costs should follow the event on the ordinary basis.

Jurisdiction
Australia
Judgment Date
15 May 2015
Procedural Posture
Commercial Arbitration Referral, Stay and Costs Ruling / Following the Principal Judgment Referring John Holland and Kellogg Brown & Root Pty Ltd to Arbitration Under S 8(1) of the Commercial Arbitration Act 2010 (nsw) and Staying the Proceedings Against Atlantis, the Court Determined Whether the Proceedings Against KBR Should Be Stayed or Dismissed and the Appropriate Costs Orders.
Outcome
The plaintiff's action against the first defendant was stayed and the plaintiff was ordered to pay the defendants' costs on the ordinary basis.
Legal Topics
['referral to Arbitration' 'stay or Dismissal of Proceedings' 'indemnity Costs' 'ordinary Basis Costs' 'court Discretion as to Costs']
['commercial Arbitration' 'civil Procedure' 'costs'] ['referral to Arbitration' 'stay or Dismissal of Proceedings' 'indemnity Costs' 'ordinary Basis Costs' 'court Discretion as to Costs']

Case Brief

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Procedural Posture

Commercial Arbitration Referral, Stay and Costs Ruling / Following the Principal Judgment Referring John Holland and Kellogg Brown & Root Pty Ltd to Arbitration Under S 8(1) of the Commercial Arbitration Act 2010 (nsw) and Staying the Proceedings Against Atlantis, the Court Determined Whether the Proceedings Against KBR Should Be Stayed or Dismissed and the Appropriate Costs Orders.

Legal Issues

  1. 1 ['Whether proceedings against KBR should be stayed or dismissed after referral to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW).' 'Whether a party who unsuccessfully challenges a stay or referral based on an arbitration or dispute resolution agreement should presumptively pay costs on an indemnity basis.' "Whether John Holland should pay KBR's and Atlantis's costs on the ordinary basis or indemnity basis."]

Ratio Decidendi

The proceedings against KBR should be stayed rather than dismissed because a stay is consistent with referral to arbitration under s 8(1), is supported by the Court's statutory power under s 67 of the Civil Procedure Act 2005 (NSW), causes no identified prejudice to KBR, and may preserve utility for John Holland. Indemnity costs were refused because the A v B presumption is not the law in New South Wales, would improperly fetter the Court's costs discretion, and John Holland's opposition was reasonable; costs should follow the event on the ordinary basis.

Court Disposition

The plaintiff's action against the first defendant was stayed and the plaintiff was ordered to pay the defendants' costs on the ordinary basis.

Orders

  • ["John Holland's proceedings against KBR are stayed." 'John Holland is to pay the costs of KBR and Atlantis on the ordinary basis.']