Kemp v Coastal Constructions Pty Ltd [1993] QCA 76

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.