Markham Real Estate Partners (KSW) Pty Limited v Misan (No 2)

In Markham Real Estate Partners (KSW) Pty Limited v Misan (No 2), the plaintiff sought to recover its legal costs from the defendant pursuant to a guarantee and indemnity agreement under a sub-lease. The dispute centred on whether the plaintiff's later costs incurred after a specified date should be ordered on a fixed sum or indemnity basis. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the plaintiff's entitlement to recover its legal costs was limited to a fixed sum or if it could recover on an indemnity basis. This hinged on the interpretation of the guarantee and indemnity clause within the sub-lease agreement. The court had to determine whether the fixed sum provision applied only to costs incurred before a certain date or if it also encompassed costs incurred after that date.

The court found that the guarantee and indemnity clause applied to all costs incurred in the proceedings, regardless of the date they were incurred. The fixed sum provision did not limit the plaintiff's right to recover costs on an indemnity basis for costs incurred after the specified date. The court reasoned that the clear language of the agreement supported the plaintiff's right to full indemnity for all costs. Consequently, the court ordered that the plaintiff was entitled to recover its costs on an indemnity basis for the period after the fixed sum had been satisfied.

The court ordered that Markham Real Estate Partners (KSW) Pty Limited was entitled to recover its legal costs from Misan on an indemnity basis for the period after the fixed sum had been satisfied. The exact amount of costs to be recovered was to be quantified at a later date.