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Security of Payment: What constitutes a “method of resolving disputes” and the adjudicator’s role in assessing value

In this recent decision, the Court of Appeal held that a mediation-based dispute resolution clause in a construction contract did not oust the jurisdiction of an adjudicator under Victorian security of payment legislation, and that an adjudicator is not bound by a valuation certified by a superintendent under a contract.

Arbitration: Chief Justice leaves door open on indemnity costs

In a recent decision of the Federal Court of Australia, Allsop CJ (sitting at first instance) has left the door open as to whether the Federal Court of Australia will depart from the (obiter) views of the Victorian Court of Appeal and instead adopt a default indemnity costs rule in arbitration related court proceedings, as is the case in Hong Kong.

Arbitral jurisdiction: what has Kompetenz-Kompetenz got to do with it?

The negative effect of the Kompetenz-Kompetenz principle (enshrined in the Model Law on International Commercial Arbitration) requires that courts not make pre-emptive declarations as to arbitral jurisdiction, and adopt a prima facie review when entertaining applications to stay court proceedings. A recent Australian decision threatens to undermine this.

Arbitration: Reasonable opportunity to present case

This recent decision of the Arbitration List judge of the Supreme Court of Victoria suggests that the requirement that parties will be given a “reasonable opportunity” to present their case will be viewed robustly by a supervising court and not through the prism of domestic court litigation

Divergence in summary disposal of cases shown by contrasting recent decisions by the Courts of Appeal in Victoria and New South Wales

The decision of the New South Wales Court of Appeal demonstrates how a strict approach to granting summary judgment still prevails in that jurisdiction. There is in pronounced contrast to the post – Civil Procedure Act landscape in Victoria, where novel claims (unknown to Australian law in its current state) need to be supported by compelling submissions in order to survive the ‘no real prospects of success test’.

Defending may include going on the attack (just not this time)

In this Supreme Court decision, Hargrave J confirmed that an Insured’s proactive conduct may constitute reasonable defensive action covered under the Defence Costs extension of a D&O Policy, depending (as always) on the Policy’s wording. However, Mr Hird could not establish that his Federal Court action seeking declaratory relief against ASADA was causally linked to the Defence Costs extension.