Edlin & Edlin v Williams & Ors [1999] QCA 7

IN THE COURT OF APPEAL [1999] QCA 007 SUPREME COURT OF QUEENSLAND Appeal No 171 of 1998 Brisbane Before McMurdo P Thomas JA Shepherdson J [Edlin & anor v Williams] BETWEEN: RICHARD JOHN EDLIN and JULIA KAY EDLIN (Plaintiffs) Appellants AND: NOEL RICHARD WILLIAMS (Second Second Defendant) Respondent DAINTREE PALMS DEVELOPMENTS PTY LTD ACN 069 716 347 formerly BATUM PTY LTD ACN 069 716 347 (First Defendant) GEOFFREY BENTON RAYMOND (First Second Defendant) JUDGMENT DELIVERED 22 DECEMBER 1998 FURTHER ORDER DELIVERED 5 FEBRUARY 1999 1 When the reasons for judgment were delivered in this matter on 22 December 1998, the parties sought and were given time to make further submissions as to the appropriate costs order. -- 1 of 4 -- 2 2 This Court has found that the terms of the guarantee were agreed between the appellants and respondent; that the appellants’ forebearance was valuable consideration and that the respondent was therefore liable under the guarantee. 3 Clause 8 of the guarantee provided that the guarantor was to indemnify the appellants and must pay on demand, on a full indemnity basis, the appellants’ legal costs and disbursements expended or incurred by them in connection with: “(c) obtaining or attempting to obtain payment of the Guaranteed Money or any part of the Guaranteed Money from the Debtor, the Guarantor or any other person; (d) the exercise or enforcement or the attempted exercise or enforcement of any right, power, authority or remedy conferred on or available to the Financier under this Guarantee or any Collateral Security or by law;” 4 We agree with the appellants’ contention that the costs of the action and of this appeal are within the terms of cl 8(c) and/or cl 8(d). The respondent has made no submissions to the contrary. 5 The appellants pleaded cl 8 in their amended plaint, and claimed "costs". The issue was not further pursued below no doubt because the appellants lost. However, their notice of appeal seeks their costs of appeal and of trial on an indemnity basis. The present claim seems to have been sufficiently placed in issue. 6 In the circumstances of this case, where the contract between the parties provided for the respondent to pay the appellants’ legal costs and disbursements incurred by them in obtaining payment of the guarantee money on “a full indemnity basis” and where the respondent, a qualified solicitor, did not seek to alter this clause, despite altering other clauses, effect should be given to the written agreement between the parties. The respondent has made no submissions to the contrary. 7 The order will be that the respondent pay the appellants’ costs of and incidental to the appeal and the action on a solicitor and own client basis, to be taxed. -- 2 of 4 -- IN THE COURT OF APPEAL 99.7 SUPREME COURT OF QUEENSLAND Appeal No. 171 of 1998 Brisbane [Edlin & anor v Williams] BETWEEN: RICHARD JOHN EDLIN and JULIA KAY EDLIN (Plaintiffs) Appellants AND: NOEL RICHARD WILLIAMS (Second Second Defendant) Respondent DAINTREE PALMS DEVELOPMENTS PTY LTD ACN 069 716 347 formerly BATUM PTY LTD ACN 069 716 347 (First Defendant) GEOFFREY BENTON RAYMOND (First Second Defendant) McMurdo P Thomas JA Shepherdson J Judgment delivered 22 December 1998 Further Order delivered 5 February 1999 Order of the Court RESPONDENT TO PAY THE APPELLANTS' COSTS OF AND INCIDENTAL TO THE APPEAL AND THE ACTION ON A SOLICITOR AND OWN CLIENT BASIS, TO BE TAXED. -- 3 of 4 -- CATCHWORDS: COSTS ORDER - construction of guarantee - whether guarantee providing for costs on a full indemnity basis justified an order for costs on a solicitor and own client basis Counsel: Mr D.J. Jackson Q.C. with him Mr R. Jackson for the appellants Mr D. Cooper for the respondent Solicitors: McCullough Robertson for the appellants Purcell Chadwick & Skelly for the respondent Hearing Date: 15 September 1998 -- 4 of 4 --