Incitec Ltd v Alkimos Shipping Corporation

REASONS FOR JUDGMENT 1 On 3 June 2004, I granted leave to the owner (Alkimos) to cross-claim against the charterer (Hyundai) in each of these matters. 2 This was in the face of an exclusive jurisdiction clause. For this reason I said at the end of my judgment ([2004] FCA 698) that I would hear the parties on the proper order as to costs. The owner seeks its costs of the motion. It says that it won a contested motion on well established principles. 3 The charterer says that the proper order for costs should be that the costs of both the owner and the charterer in relation to the notices of motion should be each party's costs in the cause. 4 I agree with the charterer's submissions. The usual rule is that the costs follow the event. However, the Court is given a wide discretion in s 43 of the Federal Court of Australia Act 1976 (Cth), which, however, must be exercised judicially. 5 There are sufficient circumstances here which warrant the order that I propose. Alkimos was not entirely successful in its opposition to Hyundai's position. In particular, I rejected some of the important submissions put by Alkimos regarding the nature of the claim and whether or not it fell within the dispute resolution clause. Further, the judgment as to the exercise of discretion in these matters is often a difficult one to predict. I indicated that the balance was a "fine one", see [66] of my earlier reasons. Further, Hyundai did not act unreasonably in seeking to enforce its contractual bargain. 6 In all the circumstances I think that a just and proper outcome is that each party should have its costs in the respective cause. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 30 June 2004 Counsel for ASC: Dr A Bell