Edlin and Edlin v Williams

[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.

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;”

1. 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.

2. 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.

3. 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.

4. 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.

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 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