Zhang and Wu v South Sky Investments Pty Ltd (No 2)

[2011] QSC 383

[2011] QSC 383

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

No 4215 of 2011

JOHN HAI ZHANG AND HONGYI WU	Applicants
and
SOUTH SKY INVESTMENTS PTY LIMITED	Respondent

BRISBANE

..DATE 02/12/2011

JUDGMENT

HIS HONOUR:  This matter was heard by me in Brisbane on the
1st of September.  In my judgment the application should be
dismissed.  I shall hear the parties as to consequential
orders and costs.  I publish my reasons.

...

The successful respondent seeks an order for costs on the
indemnity basis.  The unsuccessful applicants have not opposed
an order for costs but do submit that it should not be on the
indemnity basis.  The claim for the costs on the indemnity
basis is made because clause 7.3 of the contract provided that
the seller, that is to say the successful respondent, would be
entitled to damages for any loss which it suffered as a result
of the buyer's default, including legal costs on a full
indemnity basis.

It seems to me that the legal costs of resisting the present
application can fairly be categorised as having been suffered
as a result of the buyer's default and that in consequence
were the respondent to bring proceedings for damages in the
amount of their costs in the present proceedings, or in the
amount of their costs in the present proceedings less any
costs paid under a standard assessment, they would be
successful.

To bring such proceedings would mean additional costs for both
sides and delay which, it seems to me, would achieve nothing.
Effectively the just result can be achieved by the order which
the respondent seeks.  I therefore order that the applicants
pay the respondent's costs assessed on the indemnity basis.

...

I grant the applicant's leave to appeal against so much of the
costs order as orders assessment of costs on the indemnity
basis.

-----