Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood [2012] QCA 60

SUPREME COURT OF QUEENSLAND CITATION: Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 60 PARTIES: CURRUMBIN INVESTMENTS PTY LTD (ACN 010 304 677) (appellant) v BODY CORP MITCHELL PARK PARKWOOD CTS (respondent) FILE NO/S: Appeal No 1879 of 2011 SC No 13890 of 2010 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Order ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 March 2012 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Margaret McMurdo P and Fraser JA and Fryberg J Judgment of the Court FURTHER ORDER: The respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – respondent applied for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15 Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9, related COUNSEL: No appearance by the appellant No appearance by the respondents, the respondent's submissions were heard on the papers SOLICITORS: Kinneally Miley Law for the appellant Adamson Bernays Kyle & Jones Lawyers for the respondent -- 1 of 2 -- 2 [1] THE COURT: This Court made orders on 10 February 2012 allowing the appeal with costs; setting aside the orders made by the primary judge and substituting declarations as to the proper construction of the easement the subject of the appeal: Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9. [2] The respondent has applied for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). Where an appeal against a decision in the Supreme Court on a question of law succeeds, this Court has an unfettered discretion in determining whether to grant a respondent an indemnity certificate under s 15. This appeal succeeded on a question of law. The appellant was successful on an argument which was not advanced before the primary judge and substantially amended at the hearing of the appeal the relief it claimed, ultimately abandoning much of the declaratory relief sought at first instance and in the notice of appeal. There is substance in the respondent's contention that some of the expense it has been put in this matter to may have been avoided had the appellant framed its case differently at first instance and at the commencement of the appeal. It is also relevant that the respondent's contentions were fairly arguable. In those circumstances, this is an appropriate case in which to grant the respondent the indemnity certificate it seeks. ORDER: The respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). -- 2 of 2 --