Badge Constructions Pty Ltd v Penbury Coast P/L No. SCGRG-98-819 Judgment No. S6

[1999] SASC 6

Supreme Court of South Australia

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Interrogate

Catchwords

1. Costs
2. › Arbitration costs
3. › Building contract dispute
4. › Claim and counter-claim both successful
5. › Balance judgment in favour of claimant
6. › Whether each party bearing own costs constituted manifest error of law
7. › Commercial Arbitration Act 1986 (SA), s 38(5)
1. Arbitration
2. › Commercial arbitration
3. › Appeal from arbitrator's award
4. › Leave to appeal on question of law
5. › Manifest error of law
6. › Standard for granting leave
7. › Commercial Arbitration Act 1986 (SA), s 38(5)(b)
1. Costs
2. › General rule that costs follow the event
3. › Counter-claim in nature of defence or set-off
4. › Successful party is party who secures balance judgment
5. › Whether exceptional circumstances or good cause required to depart from general rule

Quick Take

Where both a claim and counter-claim arising out of a building contract succeed, the successful party for costs purposes is the party who secures the balance judgment. The fact that the opposing party succeeded on its cross-claim and defended most of the claimant's individual claims, and that both parties conducted themselves properly, does not constitute exceptional circumstances or good cause for departing from this general rule. An arbitrator who orders each party to bear its own costs in such circumstances commits a manifest error of law.