Gold Coast Commerce Club Inc v Body Corporate for Surfers Plaza Resort Community Titles Scheme 6388 (No 3)

SUPREME COURT OF QUEENSLAND

CITATION:

Gold Coast Commerce Club Inc & Anor v Body Corporate for Surfers Plaza Resort Community Titles Scheme 6388
(No 3) [2009] QCA 255

PARTIES:

GOLD COAST COMMERCE CLUB INCORPORATED
(first plaintiff/first appellant)
CRESTDEN PTY LTD ACN 116 486 670
(second plaintiff/second appellant)
v
BODY CORPORATE FOR SURFERS PLAZA RESORT COMMUNITY TITLES SCHEME 6388
(defendant/respondent)

FILE NO/S:

Appeal No 197 of 2009
Appeal No 577 of 2009
SC No 3451 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Judgment delivered 21 August 2009
Further orders delivered 28 August 2009
Further order delivered 1 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Keane and Holmes JJA and Mullins J
Judgment of the Court

FURTHER
ORDER:

Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where respondent applied for indemnity certificate – where indemnity certificate available only with respect to errors of law – where appeal allowed on errors of fact – whether indemnity certificate should issue

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

A J H Morris QC, with C A Wilkins, for the appellants
M D Hinson SC for the respondent

SOLICITORS:

Porter Davies for the appellants
Hynes Lawyers for the respondent

THE COURT: The unsuccessful respondent in these appeals seeks a certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) ("the Act").

Section 15 of the Act provides for the grant of a certificate in respect of an appeal where the appeal succeeds on a question of law.

The appeal to this Court succeeded by reasons of errors of fact on the part of the learned primary judge.[1]
[1]Gold Coast Commerce Club Inc & Anor v Body Corporate for Surfers Plaza Resort Community Titles Scheme 6388 [2008] QSC 323 at [12] and [14].

We would, therefore, refuse the application for a certificate.

CaseChat Overview and Summary

The case before the court was between Gold Coast Commerce Club Inc and Body Corporate for Surfers Plaza Resort Community Titles Scheme 6388, a dispute concerning the Appeal Costs Fund in Queensland. The legal matter involved the refusal of an indemnity certificate by the court. The applicant had applied for such a certificate, which is available only in cases where the appeal is allowed on errors of law. In this instance, the appeal was successful due to errors of fact, leading to the question of whether an indemnity certificate should still be issued.

The court was required to determine whether the refusal of the indemnity certificate was appropriate, given that the appeal was successful on factual errors rather than legal ones. The primary issue was whether the indemnity certificate should be granted in circumstances where the appeal was allowed on factual errors, not errors of law. The court had to weigh the principles of the Appeal Costs Fund and the specific conditions under which an indemnity certificate could be issued.

The court reasoned that the conditions under which an indemnity certificate can be granted are strict, and these conditions were not met in this case. The court noted that the certificate is only applicable to errors of law, and since the appeal was successful on factual grounds, the requirements for an indemnity certificate were not satisfied. The court held that the refusal of the indemnity certificate was justified as the appeal was allowed on factual errors, and therefore, the court's decision was to refuse the application for the certificate.

In conclusion, the court refused the application for an indemnity certificate, maintaining that the conditions for such a certificate were not met due to the nature of the appeal's success. The court's decision was based on the strict interpretation of the conditions governing the issuance of indemnity certificates under the Appeal Costs Fund.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Gold Coast Commerce Club Inc & Anor v Body Corporate for Surfers Plaza Resort Community Titles Scheme 6388 (No 3) [2009] QCA 255
PARTIES:	GOLD COAST COMMERCE CLUB INCORPORATED (first plaintiff/first appellant) CRESTDEN PTY LTD ACN 116 486 670 (second plaintiff/second appellant) v BODY CORPORATE FOR SURFERS PLAZA RESORT COMMUNITY TITLES SCHEME 6388 (defendant/respondent)
FILE NO/S:	Appeal No 197 of 2009 Appeal No 577 of 2009 SC No 3451 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals – Further Order
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Judgment delivered 21 August 2009 Further orders delivered 28 August 2009 Further order delivered 1 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Keane and Holmes JJA and Mullins J Judgment of the Court
FURTHER ORDER:	Application refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where respondent applied for indemnity certificate – where indemnity certificate available only with respect to errors of law – where appeal allowed on errors of fact – whether indemnity certificate should issue Appeal Costs Fund Act 1973 (Qld), s 15
COUNSEL:	A J H Morris QC, with C A Wilkins, for the appellants M D Hinson SC for the respondent
SOLICITORS:	Porter Davies for the appellants Hynes Lawyers for the respondent