GAJ v RAJ - [2011] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION:

GAJ v RAJ [2011] QCA 190

PARTIES:

GAJ
(appellant)
v
RAJ
(respondent)

FILE NO/S:

Appeal No 7019 of 2010
DC No 609 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and White JJA and McMurdo J
Judgment of the Court

FURTHER ORDERS:

1.The respondent pay the appellant’s costs of and incidental to the appeal on the standard basis.

2.Refuse the respondent’s application for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND

PROCEDURE – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the appellant was successful on appeal in challenging the primary judge’s property adjustment orders – where the appellant seeks an order that the respondent pay costs of the appeal – where the respondent seeks an indemnity certificate pursuant to s 15 Appeal Costs Fund Act 1974 (Qld) – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15
Property Law Act 1974 (Qld), s 19, s 341
Supreme Court of Queensland Act 1991 (Qld), s 69(1)

GAJ v RAJ[2011] QCA 65, cited
KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489, cited
Lauchlan v Hartley [1980] Qd R 149, cited
R v Moti[2010] QCA 241, cited
Vella v Larson [1982] Qd R 298, cited

COUNSEL:

J Brasch, with B Thiele, for the appellant
C Carew for the respondent

SOLICITORS:

Morton & Morton for the appellant
James & Co Lawyers for the respondent

THE COURT: The appeal in this matter was allowed on 12 April 2011[1] with the parties to provide written submissions on costs.
[1]GAJ v RAJ [2011] QCA 65.

The appellant seeks an order that the respondent pay her costs of the appeal to be assessed on the standard basis. The respondent seeks an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld).[2]
[2]The respondent complied with para 29 of Practice Direction No. 2 of 2010 in that the application was made within 14 days of the delivery of the appeal judgment.

In her written submissions the appellant states that an offer to settle the appeal prior to the filing of the notice of appeal was made by her, was not accepted, and was withdrawn after a week. She does not seek to rely on that matter, it would appear, in the disposition of her application for costs.

The respondent does not contend that the appellant should not have her costs of the appeal. The appeal to this court is brought pursuant to s 69(1) of the Supreme Court of Queensland Act 1991 (Qld) and is thus not a proceeding under Part 19 of the Property Law Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GAJ v RAJ

Details

AGLC: GAJ v RAJ [2011] QCA 190
Case: [2011] QCA 190
Decision Date: 9 August 2011

CaseChat Overview and Summary

In the case of GAJ v RAJ, the appellant successfully challenged the primary judge’s property adjustment orders in the Supreme Court of Queensland. The appellant now seeks an order that the respondent pay costs of the appeal, while the respondent has applied for an indemnity certificate under section 15 of the Appeal Costs Fund Act 1974 (Qld). The court was required to determine the principles governing the grant or refusal of an indemnity certificate, especially in light of the appellant's success on appeal. The central issue was whether the court should grant an indemnity certificate to the respondent to protect against the financial consequences of the appellant's successful appeal.

The court considered the general principles for granting an indemnity certificate, emphasizing the need to balance the interests of the successful appellant and the respondent. The court noted that the primary judge had discretion to consider various factors, including the merits of the appeal, the financial position of the respondent, and the potential hardship caused by the refusal of an indemnity certificate. The court held that the primary judge had not erred in refusing the certificate, as the respondent had not demonstrated sufficient grounds to warrant protection against the financial consequences of the appeal costs. The court concluded that the primary judge's decision was within the bounds of proper exercise of discretion.

In light of the findings, the appeal was dismissed, and the respondent's application for an indemnity certificate was rejected. The court affirmed the primary judge's decision, finding no basis to overturn the refusal of the indemnity certificate. The final orders of the court were that the respondent was not to be granted an indemnity certificate and that the respondent was to pay the costs of the appeal as ordered by the primary judge.

Orders