Chen & Anor v Kevin McNamara & Son Pty Ltd & Anor (No. 2)

[2012] VSCA 229

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Contractual entitlement to costs
5. › Whether contractual provision for 'any costs and fees' entitled successful party to indemnity costs
6. › Construction of costs clauses in building contracts
7. › Whether plain and unequivocal language required for special costs order
8. › Supreme Court Act 1986 (Vic), s 24(1)
1. Practice and Procedure
2. › Costs
3. › Curial discretion
4. › When contractual provisions may inform curial discretion as to costs
5. › Whether court bound to give effect to extra-curial agreement as to costs
6. › Supreme Court Act 1986 (Vic), s 24(1)
1. Contract
2. › Construction
3. › Costs clauses
4. › Whether agreement to pay costs is agreement to pay party/party costs absent plain language to the contrary
5. › Distinction between 'any costs and fees' and 'indemnity costs' or 'solicitor/client costs'

Quick Take

A contractual clause requiring one party to pay 'any costs and fees' incurred by the other in enforcing its rights does not, without more, entitle the successful party to indemnity costs. The clause must contain plain and unequivocal language — such as references to 'indemnity', 'solicitor/client costs', or 'special costs' — to displace the default of party/party costs. The phrase 'any costs and fees' is materially different from an indemnity clause referring to 'all costs and expenses' in the context of an express indemnity.