Kemp v Coastal Constructions Pty Ltd

[1993] QCA 76

IN THE COURT OF APPEAL	[1993] QCA 076
SUPREME COURT OF QUEENSLAND

Appeal No. 171 of 1992

Brisbane

[Kemp v. Coastal Constructions]

BETWEEN:

GARY JOHN KEMP

(Applicant) Appellant

- and -

COASTAL CONSTRUCTIONS PTY. LTD.

(Respondent) Respondent

The Chief Justice
Mr. Justice McPherson

Mr. Justice Pincus

Order for costs delivered 17/03/1993

THE COSTS OF THE APPEAL BE TAXED AND PAID BY ROSS ANDREW DUUS

AND NEIL EDWIN SUMMERSON.

CATCHWORDS:	COSTS - NON-PARTIES - Successful appellant seeks costs order against liquidators of respondent company - whether jurisdiction to order liquidators to pay costs - whether appellant should bear risk of assets being insufficient to meet liability.
Counsel:	C.A. White for the Appellant R. Derrington for the Respondent
Solicitors:	Cooper Grace & Ward t/a for Nehmer Davenport Dean McKee for the Appellant Carter Newell for the Respondent
Hearing Date(s):	11 February 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 171 of 1992

Brisbane

Before The Chief Justice

Mr. Justice McPherson

Mr. Justice Pincus

[Kemp v. Coastal Constructions]

BETWEEN:

GARY JOHN KEMP

(Applicant) Appellant

- and -

COASTAL CONSTRUCTIONS PTY. LTD.

(Respondent) Respondent

ORDER FOR COSTS

Order for costs delivered 17/03/1993

Judgment in this appeal was delivered on 11 February 1993.
At that time, an order dealing with the costs of the appeal
was pronounced, but that was vacated when the successful
appellant indicated that it was desired to make a submission
with respect to those costs. The parties subsequently
delivered submissions and the appellant contended that Ross
Andrew Duus and Neil Edwin Summerson, described as the
liquidators to the respondent, should be ordered to pay the
costs; reference was made to Knight v. F.P. Special Assets
Ltd. (1992) 174 C.L.R. 178. We are of opinion that there is
jurisdiction to order Messrs Duus and Summerson to pay the
costs. If such an order is not made and the appellants are
confined to a remedy against the respondent company, they may
be subjected to some risk that the costs will not be recovered.
If, on the other hand, Messrs Duus and Summerson are ordered
to pay the costs, no doubt they will have a right to be
indemnified out of the assets of the company and we think it is
just that they rather than the appellant should bear any risk
of the company's assets being insufficient to meet the
liability.

The respondent's submissions on costs made the point that the appeal succeeded in an unexpected fashion. As we see it, the appellant's claim has been resisted in rather a technical way and without any great regard to minimising expense; the liquidators have no special claim to consideration on the question of costs. In the whole of the circumstances, we are of opinion that the order that the appellant has sought should be made.