Wilmoth Field Warne (a firm) v Equuscorp Pty Ltd

[2007] VSCA 28

Victorian Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Arbitration
3. › Discretion to depart from usual costs rule
4. › Whether reason for departure sufficiently connected with the proceeding
5. › Whether arbitrator impermissibly gave effect to void costs clause
6. › Commercial Arbitration Act 1984 (Vic), s 34(3), s 38(4)(b)
1. Arbitration
2. › Commercial arbitration
3. › Costs of arbitration
4. › Arbitration clause providing parties bear own costs
5. › Agreement held void
6. › Effect of void costs clause on exercise of costs discretion
7. › Commercial Arbitration Act 1984 (Vic), s 34(3)
1. Costs
2. › General principles
3. › Costs follow the event
4. › Discretion to depart from usual rule
5. › Whether discretion unfettered
6. › Whether limited to disentitling conduct
7. › Relevance of matters not connected with the proceeding

Quick Take

An arbitrator may not give indirect effect to a void costs clause by treating the parties' supposed common intention (derived from that clause and surrounding history) as a reason to depart from the usual costs rule. Any reason for departing from the rule that costs follow the event must be sufficiently connected with the arbitration proceeding itself. The costs discretion in arbitration, while unfettered, does not extend to reliance on extraneous matters such as pre-contractual negotiations or void contractual provisions.