Walsh v South Sky Investments Pty Ltd

[2012] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

Walsh & Anor v South Sky Investments Pty Ltd [2012] QCA 162

PARTIES:

MICHAEL SHANE WALSH
DAMIAN ROBERT HUTCHINS
(appellants)
v
SOUTH SKY INVESTMENTS PTY LTD
ACN 097 092 709
(respondent)

FILE NO/S:

Appeal No 11909 of 2011
SC No 13614 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application to Strike Out

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2012

JUDGES:

Margaret McMurdo P and Muir JA and Margaret Wilson J
Judgment of the Court

ORDERS:

1.   Appeal dismissed.

2.   The appellants pay the respondent’s costs of and incidental to the appeal, including reserved costs, if any, on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – where appellants were amongst several appellant purchasers under contracts entered into with respondent for the purchase of proposed lots in a community titles scheme – where all appellants ordered to pay security for costs prior to the appeal hearing – where the appellants did not pay that security – where current appeal stayed – where all related appeals dismissed – whether appeal should be struck out

South Sky Investments Pty Ltd v Gough & Ors [2012] QCA 11, considered

COUNSEL:

R Bain QC, with C Heyworth-Smith, for the appellants
S Doyle SC, with D Clothier SC, for the respondent

SOLICITORS:

Johnsons Lawyers for the appellants
Allens Arthur Robinson for the respondent

1. THE COURT:  On 15 February 2012 Muir JA ordered:

“1.The appellants in each appeals #11905/11, 11906/11, 11908/11, 11909/11, 11911/11, 11912/11, 11913/11, and 11915/11 provide security for the respondent’s costs of the appeal to the satisfaction of the registrar in the sum of $8,000 by 4.00 pm on 23 February 2012.

2.If the security required under order 1 is not provided in accordance with that order in respect of five appeals, the appeals of those appellants who have not provided such security be dismissed.

3.If no appeals are dismissed pursuant to order 2, the appeals of those appellants who have failed to pay security for costs in accordance with order 1 be stayed until further order…”[1].

[1]South Sky Investments Pty Ltd v Gough & Ors [2012] QCA 11.

1. All appellants, save those in 11908/11 and 11909/11, paid the security for the respondent’s costs of the appeals in accordance with that order.  The parties in 11908/11 and the respondent compromised the appeal prior to the hearing where it was dismissed by consent with no order as to costs. 

1. On 27 February 2012, the respondent brought an application to dismiss 11909/11 with an order that those appellants pay the respondent’s costs of and incidental to the appeal on an indemnity basis.  That application was heard at the hearing of the appeals in 11905/11, 11906/11, 11911/11, 11912/11, 11913/11 and 11915/11. 

1. The consequence of the failure by the appellants in 11909/11 to supply security in accordance with the order of 15 February 2012 was that 11909/11 was stayed.  There has been no indication that the security could or would be provided.  As all other appeals involving the same issues as raised in 11909/11 have been decided against all those appellants, 11909/11 should also be dismissed.

1. Clause 7.3 of the terms of the contract between the parties provides that “The Seller is entitled to damages for any loss which it suffers as a result of the Buyer’s default, including legal costs on a full indemnity basis”.  It follows that the respondent to this application should pay the costs of and incidental to 11909/11 on an indemnity basis.

ORDER:

1.          Appeal dismissed.

2.          The appellants are to pay the respondent’s costs of and incidental to the appeal, including reserved costs, if any, on the indemnity basis.