QNI Resources Pty Ltd v Vannin Capital Operations Limited [No 2]

[2023] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION:	QNI Resources Pty Ltd & Anor v Vannin Capital Operations Limited & Ors [No 2] [2023] QCA 235
PARTIES:	QNI RESOURCES PTY LTD ACN 054 117 921 (first appellant) QNI METALS PTY LTD ACN 066 656 175 (second appellant) v VANNIN CAPITAL OPERATIONS LIMITED (first respondent) PALMER AVIATION PTY LTD ACN 158 870 789 (second respondent) QUEENSLAND NICKEL PTY LTD ACN 009 842 068 (third respondent)
FILE NO/S:	Appeal No 1332 of 2023 SC No 13947 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane – [2023] QSC 1 (Burns J)
DELIVERED ON:	24 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Mullins P and Boddice JA and Applegarth J
ORDER:	The appellants are to jointly and severally pay the first respondent’s costs of the appeal, on a full indemnity basis, pursuant to clause 4 of schedule 2 of the agreement styled “US$ Aircraft Loan Facility Agreement”.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – where, at the hearing of the appeal, the parties expressly sought leave to make further submissions in respect of costs – where the appeal was dismissed – where the first respondent seeks an order for costs on an indemnity basis – where a guarantee document concerning the parties expressly provides for an indemnity to the first respondent in respect of costs – where the appellants do not oppose an order to that effect – whether the Court ought to exercise its discretion to award costs on an indemnity basis
COUNSEL:	P J Dunning KC, with M Karam and K S Byrne, for the appellants D G Clothier KC, with A I O’Brien, for the first respondent No appearance for the second respondent No appearance for the third respondent
SOLICITORS:	Robinson Nielsen Legal for the appellants Ashurst Australia for the first respondent No appearance for the second respondent No appearance for the third respondent

1. THE COURT:  On 3 November 2023, an order was made dismissing the appellants’ appeal.  As the parties had sought to make submissions on costs, leave was granted for the parties to file written submissions in respect of costs.

2. The first respondent seeks an order for costs, to be assessed on the indemnity basis.  The appellants accept that the costs should follow the event and do not oppose an order that, “The appellants are to jointly and severally pay the first respondent’s costs of the appeal on a full indemnity basis pursuant to clause 4 of schedule 2 of the agreement styled ‘US$ Aircraft Loan Facility Agreement’”.

3. There is no reason why costs ought not to be ordered to follow the event.  Further, as the appellants are jointly and severally liable as guarantors and the guarantee contains a specific clause providing an indemnity to the first respondent in respect of costs, and the appellants do not oppose an order based on that clause, this Court, in these circumstances, exercises its discretion to order that the appellants are to jointly and severally pay the first respondent’s costs of the appeal, on an indemnity basis.

4. It is ordered:

   1.The appellants are to jointly and severally pay the first respondent’s costs of the appeal, on a full indemnity basis, pursuant to clause 4 of schedule 2 of the agreement styled “US$ Aircraft Loan Facility Agreement”.