Robot X Limited v Placer Robotics Pty Ltd & Anor (No 2)

Medium Neutral Citation: Robot X Limited v Placer Robotics Pty Ltd & Anor (No 2) [2026] NSWSC 1303

Hearing dates: On the papers

Date of orders: 21 October 2026

Decision date: 21 October 2026

Jurisdiction: Equity

Before: Scruby J

Decision: (1) The plaintiff is to pay the first defendant’s costs of the defendants’ Notice of Motion dated 10 June 2026 and amended with leave following the hearing on 17 September 2026 (the Motion), on the ordinary basis, as agreed or assessed, such costs to be payable forthwith.
(2) The plaintiff is to pay the second and third defendants’ costs of the Motion up until and including 10 September 2026, on the ordinary basis, as agreed or assessed, such costs to be payable forthwith.
(3) The plaintiff is to pay the defendants’ costs of this costs application, on the ordinary basis, as agreed or assessed, such costs to be payable forthwith.
(4) Subject to order (3), the costs of the Motion as between the plaintiff and the second and third defendants following 10 September 2026 are reserved.
(5) Any application by the defendants for a gross sum costs order and any evidence and written submissions in support of such application is to be filed and served by 28 October 2026.
(6) The plaintiff is to file and serve any evidence and written submissions in opposition to such application within 7 days of receipt of any submissions filed and served pursuant to order (5).
(7) Any such application will be determined on the papers if appropriate.

Catchwords: COSTS — costs of application for stay or dismissal of proceedings — whether indemnity costs should be ordered — whether order should be made that costs be payable forthwith

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 67, 98(1)
Competition and Consumer Act 2010 (Cth) Sch 2 - Australian Consumer Law s 236
International Arbitration Act 1974 (Cth) s 7
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.7

Cases Cited: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 238 ALR 457; [2006] FCAFC 192
Hancock Prospecting Pty Ltd v Rinehart (No 2) [2017] FCAFC 208
Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82
K Sheridan v Colin Biggers & Paisley [2019] NSWSC 621
Max Build Pty Ltd v The Owners – Strata Plan No 54026 (No 3) [2025] NSWSC 1531
Meoli v Romero [2026] NSWSC 1065
Owners — Strata Plan No 87,231 v 3A Composites GmbH (No 2) [2020] FCA 333
Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31
In the matter of Sunny International Hardware Group Pty Ltd [2025] NSWSC 348
Rinehart v Rinehart (No 2) [2020] NSWSC 235
Robot X Limited v Placer Robotics Pty Ltd & Anor [2026] NSWSC 1208
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
Sayour v Elliott (No 2) [2018] NSWSC 146

Category: Costs

Parties: Robot X Limited (Plaintiff)
Placer Robotics Pty Ltd (ACN 631 303 761) (First Defendant)
Anton Vinokurov (Second Defendant)
Matthew Samuel Lipski (Third Defendant)

Representation: Counsel:
D Gasic (Plaintiff)
A d’Arville (Defendants)
Solicitors:
BlackBay Lawyers (Plaintiff)
Buchanan Rees (Defendants)

File Number(s): 2026/00237611

Publication restriction: Nil

JUDGMENT

1. Following the delivery of judgment in Robot X Limited v Placer Robotics Pty Ltd & Anor [2026] NSWSC 1208 (Principal Decision or PD), orders were made to enable the parties to be heard on the question of the costs. These reasons determine that question. They should be read in conjunction with the Principal Decision, and they adopt the abbreviations therein.

2. The Principal Decision concerned an application brought by the defendants to dismiss or permanently stay two categories of claim raised by Robot X’s Amended Summons. Those categories of claim were as follows:

3. compensation under s 236 of the Competition and Consumer Act 2010 (Cth) Sch 2 (ACL) and tortious damages based on allegations about the defendants’ dealings with Robot X’s clients or potential clients in relation to the Pizzabot machine.

4. Contractual claims for breach of the Undertaking.

5. The defendants were the moving parties on the application that was determined in the Principal Decision. That application was made by motion filed 10 June 2026 and amended with leave following the hearing on 17 September 2026 (the Motion).

6. In summary, the result of the Principal Decision was that:

7. The proceedings brought by Robot X as against Placer were permanently stayed pursuant to s 7(2) of the International Arbitration Act 197**4 (the Act).

8. The proceedings brought by Robot X as against the second and third defendants were stayed on a temporary basis until the conclusion of arbitration or litigation in Sweden as between Robot X and Placer.

9. The stay in 2 was subject to liberty granted to the second and third defendants to pursue their claims for a permanent stay, either pursuant to ss 7(2) and 7(4) of the Act (by the operation of the arbitration clause) or pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (the CPA) (by the operation of the exclusive jurisdiction clause).

10. The defendants sought the following costs orders:

11. Placer sought an order that Robot X pay its costs on an indemnity basis as agreed or assessed, to be payable forthwith.

12. The second and third defendants sought orders that Robot X pay their costs on an ordinary basis, as agreed or assessed, to be payable forthwith.

13. Robot X sought the following costs orders:

14. that Placer pay Robot X’s costs on an indemnity basis from 24 June 2026 and otherwise on an ordinary basis (or such other basis as the Court sees appropriate). This order is sought on the basis of Placer’s rejection of Robot X’s Calderbank letter dated 22 June 2026 ().

Robot X v Placer

7. Dealing first with the question of costs as between Robot X and Placer, it is clear that Placer succeeded wholly in the relief that it sought in the Motion. The Calderbank letter did not offer to bring about the result that Placer obtained in the Principal Decision. Rather, it offered to consent to a dismissal of the Motion, and the discontinuance of Robot X’s claims in the Summons. It maintained a proposition that was rejected in the Principal Decision, namely that the claims for breach of the Undertaking did not fall within the terms of the arbitration agreement or exclusive jurisdiction clause. For these reasons, the letter does not assist Robot X on the question of costs, and I reject Robot X’s submissions as to the costs between it and Placer.

8. As to Placer’s claim that it is entitled to indemnity costs from Robot X, s 98(1)(c) of the CPA permits the Court to order costs on an ordinary or indemnity basis. Placer’s claim to indemnity costs is based on the proposition that, although pursuant to UCPR r 42.1 costs follow the event unless it appears to the court that some other order should be made, some other order may be made where the unsuccessful party has conducted the case in a manner that has unreasonably subjected the successful party to costs. One example of where an order for indemnity costs is appropriate is where the unsuccessful party, properly advised, should have known that they had no chance of success. Placer referred to the decision of Williams J in Meoli v Romero [2026] NSWSC 1065 and I accept that her Honour’s reasons at [6]-[7] set out the principles applicable here; see also In the matter of Sunny International Hardware Group Pty Ltd [2025] NSWSC 348 (Sunny International) at [8]; K Sheridan v Colin Biggers & Paisley [2019] NSWSC 621 at [16]; Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [4].

9. Black J summarised the principles governing the “exceptional circumstances” which justify an order for indemnity costs in Sunny International at [8], as follows:

“Costs are awarded on an ordinary basis unless there are exceptional circumstances: Leichhardt Municipal Council v Green [2004] NSWCA 341. An order for indemnity costs is not made to punish an unsuccessful plaintiff for persisting with a case that fails, but to compensate a successful defendant fully for costs incurred, when the Court takes the view that it was unreasonable for the plaintiff to have subjected that party to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659; [2002] FCAFC 97 at [20]. Whether an indemnity costs order should be made depends, at least in part, on whether there was a relevant delinquency on the part of the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at 89; [1998] HCA 11. In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) (2008) 65 ACSR 324; [2008] NSWSC 199, McDougall J observed (at [24]) that there must usually be some special or unusual feature to justify departure from the ordinary rule as to costs, and that delinquency is not necessary for an order for indemnity costs, but is relevant to whether it should be made. The relevant principles were also considered by the Court of Appeal in Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6], where the Court observed that an order for indemnity costs may be made where a party’s conduct in proceedings is plainly unreasonable or involves an element of delinquency.”

10. On balance, and taking into account all the circumstances of the case, I do not accept that Robot X’s conduct in contesting the stay application was so unreasonable as to justify an order for indemnity costs. Certain arguments raised by Robot X skated very close to the line. It was plainly wrong to submit that the claims for breach of the Undertaking were not arbitrable because the Undertaking was given in Court. So too was it plainly wrong to submit that the inter partes Undertaking constituted a submission to the Court’s jurisdiction or a waiver. Further, in Robot X’s submissions on whether the various categories of claim fell within the scope of the arbitration clause, it appeared that only lip service, if anything, was paid to the range of authorities suggesting that broad language in a dispute resolution clause should be given ample effect: see PD at [52]-[54].

11. However, legitimate and difficult questions often arise as to whether tortious or ACL claims of the kind raised in the Amended Summons are caught by an arbitration clause which captures disputes arising “in relation to or in connection with” a contract such as the EDA. Such questions are commonly litigated, often not easy of resolution, and depend on the wording of the particular clause: see, e.g., the annexure at [117] of Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82. While, as I noted at PD [54], “[a]ssertions that false statements were made to such third parties regarding the machine or Placer’s obligations in relation to it are well within the wide words of cl 30.2”, I do not consider this aspect of Robot X’s argument to be so unreasonable as to justify an order for indemnity costs.

12. I would make a similar observation in relation to the arguments raised by Robot X in relation to the arbitrability of the ACL claims. As I observed at PD [56], with reference to the decision of Allsop J in Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 238 ALR 457; [2006] FCAFC 192, “[i]n some circumstances, ACL claims may raise a sufficient element of public interest to require a closer assessment of the question of arbitrability”. This was not one of those cases, but it does not follow that raising the argument as to arbitrability was so unreasonable as to justify an order for indemnity costs.

13. The question of whether an unsuccessful party, properly advised, should have known that they had no chance of success requires an evaluative determination on which reasonable minds may differ. As I have said, some of Robot X’s conduct of the case is difficult to justify. However, on balance, I have reached the view that in this case, the grounds on which Robot X resisted Placer’s claims were not so devoid of merit as to make its conduct of the proceedings unreasonable. Therefore, it appears to me appropriate to make an order under s 98 of the CPA that Robot X pay Placer’s costs of the Motion on an ordinary basis. To be quite clear, I intend that order to apply both to the costs of the Motion and to this costs argument.

Robot X v Mr Vinokurov and Mr Lipski

14. That leaves the question of costs as between Robot X and the second and third defendants. The second and third defendants relied upon UCPR r 42.1, which requires that costs should follow the event unless it appears to the court that some other order should be made. Robot X argued that some other order should be made (viz. that there be no order as to costs), because the second and third defendants did not achieve the primary relief they sought, namely a dismissal or a permanent stay of the claims against them under s 7(2) of the Act. It was also put, correctly, that the granting of an interim stay was in part the result of the defendants giving undertakings to the Court.

15. However, subject to one matter to which I will return, the matters relied upon by Robot X are not sufficient to persuade me that there should be no order as to costs. Rather, for the following reasons (and subject to one matter), the appropriate order is that Robot X pay the second and third defendants’ costs. First, the second and third defendants achieved substantial success on the Motion in that they obtained a temporary stay of the claims against them. Second**ly, while it is true that the undertakings given to the Court were relevant to the grant of relief, Robot X continued to oppose the grant of the relief after it was indicated at the hearing of the matter that those undertakings would be proffered. Thirdly, the second and third defendants successfully relied on many of the same arguments as Placer in order to achieve the temporary stay, namely that the claims raised by Robot X’s Amended Summons fell within the scope of the arbitration clause, were arbitrable, and the right to seek a stay had not been waived.

16. The one matter to which I referred above is that, as I have indicated, one result of the Principal Decision is that I adjourned the question of whether the second and third defendants are entitled to obtain a permanent stay under s 7(2) by relying on s 7(4) of the Act. I asked for and received written submissions on this question following argument but, for the reasons given in the PD, did not determine it.

17. The parties’ written submissions before the hearing, and some of the oral argument, dealt with the adjourned issues. However, the bulk of those written submissions and the oral hearing concerned other matters. I consider that some allowance should be made for the fact that the question of whether the second and third defendants are entitled to final relief has not been determined. There are many ways in which the costs of a separate issue can be carved out of a more general costs order. A court is entitled to take a broad brush approach, and the process of apportioning costs as between different issues in the proceedings is largely as a matter of impression and evaluation (see for example Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6] (Beazley P, Payne JA and Barrett AJA)). Adopting such an approach here, in my view the appropriate way to deal with this (but still reflecting the substantial success that the second and third defendants have had) is to make an order for the payment of the costs of the second and third defendants up until and including the hearing of the Motion on 10 September 2026, and to reserve the question of costs thereafter (including, therefore, the costs of the written submissions on the ss 7(2) and 7(4) question to which I have referred). Such costs should be payable on the ordinary basis. As the second and third defendants have substantially succeeded on this costs argument, it is appropriate that this order not prevent them having their costs in relation to it.

Should the orders be made “forthwith”?

18. The next question is whether costs pursuant to the above orders should be payable forthwith. UCPR r 42.7(1) makes provision for the payment of costs “of any application or other step in any proceedings”. UCPR r 42.7(2) provides that unless the court orders otherwise, such costs “do not become payable until the conclusion of the proceedings”.

19. The principles governing the Court’s discretion to order “otherwise” by making an order for costs payable “forthwith” were recently summarised by Peden J in Max Build Pty Ltd v The Owners – Strata Plan No 54026 (No 3) [2025] NSWSC 1531 (Max Build), where her Honour observed at [33] that:

“The guiding principle in exercising the discretion to make a forthwith costs order is whether, in all the circumstances, the demands of justice require it: Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 at [16]-[18] (Bathurst CJ, Beazley P, Meagher JA); Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 at [7]-[8] (Barrett J). Relevant factors include whether: (1) the proceedings giving rise to the order are sufficiently self-contained and discrete from the main proceeding yet to be heard to make it just for an actual payment to be made in the meantime; (2) there has been some unreasonable conduct by the party against whom the costs were ordered (which does not require there to be an abuse of process or misconduct): Ashwood v Ashwood [2023] NSWSC 208 at [95] (Parker J)); and (3) the conclusion of the proceedings is likely some way off: Pavlovic at [15]; Morningstar at [11]-[13].”

See also Sayour v Elliott (No 2) [2018] NSWSC 146 at [44]; Rinehart v Rinehart (No 2) [2020] NSWSC 235 at [157].

20. A party who seeks an order that the costs of an interlocutory application be payable forthwith bears the onus of demonstrating good reason why a departure from the ordinary rule is justified: see, in relation to the equivalent Federal Court rules, Owners — Strata Plan No 87,231 v 3A Composites GmbH (No 2) [2020] FCA 333 at [33].

21. In the present case, I have considerable doubt about whether it is necessary to make such an order in relation to Placer’s costs. The stay that I have granted has brought a permanent end to the substantive proceedings against Placer. In these circumstances, it seems to me that “the conclusion of the proceedings” has been reached for the purposes of UCPR r 42.7. In any event, if that is not the case, because the stay is permanent, it is plainly appropriate in my judgement for a forthwith costs order to be made in Placer’s favour. It was not suggested that the making of a forthwith costs order raises a real risk of stultification of the substantive complaints which have been referred to arbitration: c.f. Hancock Prospecting Pty Ltd v Rinehart (No 2) [2017] FCAFC 208 at [6].

22. As for the second and third defendants’ costs, although the position is not so clear, in my view the demands of justice also favour an order that costs be paid forthwith. As I have explained, the costs order in their favour has been made in a broad brush way so as to make allowance for the fact that the question of whether they are entitled to a permanent stay has not yet been determined. That being the case, the first of the three factors referred to by Barrett J in Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 at [11] and picked up the passage extracted above from the judgment of Peden J in Max Build is present here. The third factor is also present to a sufficient extent to warrant the making of a forthwith order because there is a real possibility that there will no further steps necessary in the proceedings (see PD at [70] and [88]). The second factor is present only to the extent that some of the arguments made by Robot X, as I have said above, skated quite close to being unreasonable. In all of those circumstances, I would exercise my discretion to order that the costs of the second and third defendants be payable forthwith.

Gross sum costs order

23. The defendants in written submissions in reply indicate that, were the Court minded to make costs orders in their favour, they were likely to make an application for a gross sum costs order. I will make orders which provide for them to do that and for Robot X to be heard on any such application. Having regard to what appears to be a conflict in the authorities as to whether an application for a gross sum costs order is an application to vary the costs order originally made (see Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [19]-[21]), I will require any such application to be made within 7 days of these orders.

Conclusion

24. The orders are as follows:

25. The plaintiff is to pay the first defendant’s costs of the defendants’ Notice of Motion dated 10 June 2026 and amended with leave following the hearing on 17 September 2026 (the Motion), on the ordinary basis, as agreed or assessed, such costs to be payable forthwith.

26. The plaintiff is to pay the second and third defendants’ costs of the Motion up until and including 10 September 2026, on the ordinary basis, as agreed or assessed, such costs to be payable forthwith.

27. The plaintiff is to pay the defendants’ costs of this costs application, on the ordinary basis, as agreed or assessed, such costs to be payable forthwith.

28. Subject to order (3), the costs of the Motion as between the plaintiff and the second and third defendants following 10 September 2026 are reserved.

29. Any application by the defendants for a gross sum costs order and any evidence and written submissions in support of such application is to be filed and served by 28 October 2026.

30. The plaintiff is to file and serve any evidence and written submissions in opposition to such application within 7 days of receipt of any submissions filed and served pursuant to order (5).

31. Any such application will be determined on the papers if appropriate.

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