Douglas Financial Consultants Pty Ltd v Price [1991] QSCFC 164

» W -'ft t/«f- transcript OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. O. 4000 Tel. (07) 227.4360 (Copyright in this transcript be made or sold without the Bureau.) is vested in the Crown. Copies thereof must not written authority of the Director, State Reporting REVISED COPIES ISSUED j Court Rdpbrting ! Date-. ESjMlW 1 SUPREME COURT OF QUEENSLAND FULL COURT THOMAS J MOYNIHAN J AMBROSE J No 2938 of 1989 DOUGLAS FINANCIAL CONSULTANTS PTY LTD • (Plaintiff) Respondent and DAVID RUSSELL PRICE (Defendant) Appellant BRISBANE .. DATE 20/12/91 JUDGMENT 1 [1991] QSCFC 164 -- 1 of 6 -- 1 10 20 30 40 50 60 201291 JUDGMENT I-jR JUSTICE THOMAS: We have considered the written submissions of the applicant/respondent and we intend to certify in favour of an indemnity certificate. I publish our reasons. - -Govt. Printer, Qld. 2 -- 2 of 6 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT WRIT NO. 2938 OF 1989 BETWEEN : DOUGLAS FINANCIAL CONSULTANTS PTY LTD AND: (Plaintiff) Respondent DAVID RUSSELL PRICE (Defendant) Appellant THOMAS J MOYNIHAN J AMBROSE J Reasons of the Court delivered on 20th December 1991. "GRANT THE RESPONDENT AN INDEMNITY CERTIFICATE UNDER THE APPEAL COSTS FUND ACT 1973." -- 3 of 6 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Thomas Mr. Justice Moynihan Mr. Justice Ambrose WRIT NO. 2938 OF 1989 BETWEEN: DOUGLAS FINANCIAL CONSULTANTS PTY. LTD. (Plaintiff) Respondent AND : DAVID RUSSELL PRICE (Defendant) Appellant REASONS FOR JUDGMENT - THOMAS J. Delivered the 20th day of December, 1991. CATCHWORDS : Appeal Costs Fund Act - "Fairly arguable" - Justifiable resort to appellate process. Counsel: R. Perry for appellant Solicitors: Wilson & Copley for appellant Submission in writing. -- 4 of 6 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT WRIT NO. 2938 OF 1989 BETWEEN : DOUGLAS FINANCIAL CONSULTANTS PTY. LTD. (Plaintiff) Respondent AND : DAVID RUSSELL PRICE (Defendant) Appellant REASONS FOR JUDGMENT - THOMAS J. Delivered the 20th day of December, 1991. This is a somewhat belated application for a certificate under the Appeal Costs Fund Act. We permitted the unsuccessful respondent (who has been ordered to pay the appellant's costs of the appeal, and the costs of the action below) to make written submissions on the present application. The submissions make extensive reference to the leading cases on the grant of such certificates, notably Lauchlan v. Hartley (1980) Qd.R. 149; Vella v. Larson (1982) Qd.R. 298; Sheridan v. Nikolic (1982) Qd.R. 725, and to decisions of less direct relevance to the present matter including B.C.C. v. Ferro Enterprises Ptv. Ltd. (1976) Qd.R. 332 and Zappulla v. Perkins (No. 2) (1978) Qd.R. 401. It is not necessary to recount the issues in the case. They relate to the rights of a purchaser for value in good faith without notice having regard to the Motor Vehicles Securities Act 1986 (see Douglas Financial Consultants Ptv. Ltd, v. Price Q.L.R. 2nd November, 1991). It was a matter not -- 5 of 6 -- 2 only of difficulty, but of potential importance to the community, particularly the business community as to whether it is necessary or desirable to register securities with respect to vehicles acquired in another State, where there is a prospect that they might come to this State. The case was fought between two innocent victims of a fraudulent disposition by the original owner of the vehicle. They found themselves in dispute concerning the entitlement to the vehicle after it came to Queensland. It is also relevant to note that the eventual facts were not in dispute before the primary judge and that the action turned upon the legal point which was found in the respondent's favour by the learned trial judge, but in the appellant's favour by the Full Court. The respondent to the appeal, although in the end unsuccessful, cannot reasonably be accused of having contributed to unnecessary litigation. It was a case which may in the words of Lauchlan v. Hartley (at p. 151) be described as "fairly arguable", and "an obvious instance in which a resort to the appellate process is justifiable". Because of the importance of the case over and above its importance to the parties, and the fact that it was one of first impression under a statute with respect to which there was no clear authority and to the fact that it was a clearly arguable matter, it is appropriate that an indemnity certificate be granted in favour of the respondent under the Act. I would so certify. -- 6 of 6 --