Fischer v Body Corporate for Centrepoint Community Title Scheme 7779

[2004] QCA 260

SUPREME COURT OF QUEENSLAND

CITATION:

Fischer & Ors v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 260

PARTIES:

WARREN FISCHER
(first applicant/first applicant)
MARK STEGMAN
(second applicant)
MARGARET SHERIDAN
(third applicant/second applicant)
GERARD AND MAREE TIERNEY
(fourth applicant/third applicant)
RICHARD AND ELAINE MIDGLEY
(fifth applicant/fourth applicant)
BRUCE WATSON
(sixth applicant)
PATRICK AND DIANNE WILKINS
(seventh applicant)
DONALD AND ANGELA HAYES
(eighth applicant)
PHILLIP AND MARIE WOOLSTON
(ninth applicant/fifth applicant)
WOOLSTON HOLDINGS PTY LTD
(ACN 100 890 757)
(tenth applicant/sixth applicant)
v

BODY CORPORATE FOR CENTREPOINT COMMUNITY TITLE SCHEME 7779
(respondent/respondent)

FILE NO:

Appeal No 2294 of 2004

DC No 391 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) – Further Orders

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Judgment delivered on 25 June 2004

Further Orders delivered on 30 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2004

JUDGES:

McPherson JA and Chesterman and Atkinson JJ

Judgment of the Court

FURTHER ORDERS:

1.   Respondent to pay the applicants’ costs of the
     application for leave to appeal and of the appeal

2.   Order that the respondent be granted an indemnity
     certificate pursuant to the Appeal Costs Fund Act 1973

     (Qld)

CATCHWORDS:

PROCEDURE – COSTS – whether the respondent should pay the applicants’ costs of the application for leave to appeal and of the appeal – where the Court ordered the respondent to pay the applicants’ costs – where the Court further ordered that the respondent be granted an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld)

Appeal Costs Fund Act 1973 (Qld)

Body Corporate and Community Management Act 1997 (Qld)

COUNSEL:

Mr R G Bain QC, with Mr D L K Atkinson, for the applicants

Mr R A Perry for the respondent

SOLICITORS:

Kinneally Miley for the applicants

Quinn & Scattini for the respondent

1. THE COURT:  When judgment was pronounced in this appeal counsel for the respondent requested that no order for costs be made so that he could deliver submissions on the question.  Those submissions have been received but reveal no basis for not making the order for costs proposed in paragraph [37] of the reasons for judgment of Chesterman J.

1. The submissions do, however, provide a basis for allowing the respondent an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld). The appeal turned on a point of law only, the construction of the Body Corporate Community Management Act 1997 (Qld).  The meaning of the Act was unclear and has given rise to difficulties in the District Court.  The exposition of the Act will be of assistance to bodies corporate throughout the State.

1. Accordingly there should be an order, in addition to the order found in paragraph [37] of the reasons of Chesterman J, that the respondent be granted an indemnity certificate pursuant to the Appeal Costs Fund Act.