Hill Corcoran Constructions Pty Ltd v Navarro

[1992] QCA 56

IN THE COURT OF APPEAL	[1992] QCA 056
SUPREME COURT OF QUEENSLAND	Appeal No. 44 of 1991
BETWEEN:

HILL CORCORAN CONSTRUCTIONS PTY LTD

(Plaintiff) Respondent

AND:

FRANK NAVARRO and JACQUELINE NAVARRO

(Defendants) Appellants

JUDGMENT OF THE COURT

Delivered the 10th day of April 1992

The applicant, who was the respondent in this appeal, seeks
an indemnity certificate pursuant to s.15(1) of the Appeal
Costs Fund Act. The applicant was the successful plaintiff
in an application for summary judgment in the District
Court, the application being described in the District Court
Rules as an application for liberty to sign judgment. The
judgment was for a debt due under a deed of loan. There
were separate proceedings between the parties in the Supreme
Court with respect to a building contract pursuant to which
the applicant had constructed a home unit building for Mr

and Mrs Navarro, the successful appellants in this appeal.

The appeal was successful because the Court considered that,
contrary to the view of the District Court Judge, there was

a reasonably arguable defence based on an equitable set off.

The question whether there was such an arguable defence was

one of law. It was not a simple question because the
sufficiency of a connection between the defendants' claim
and the subject matter of the plaintiff's claim to make it
unfair for the plaintiff's claim to proceed without
allowance being made for the defendants' claim is not always
clear and was not abundantly clear here. Consequently, it
could not be said that the application for summary judgment
was made merely as part of a tactical exercise or that the
application must have appeared to the plaintiff to be
unlikely to succeed.
In the circumstances we would grant an indemnity
certificate.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 44 of 1991
Before the Court of Appeal Mr Justice Davies Mr Justice Pincus Mr Justice Thomas
BETWEEN:

HILL CORCORAN CONSTRUCTIONS PTY LTD

(Plaintiff) Respondent

AND:

FRANK NAVARRO and JACQUELINE NAVARRO

(Defendants) Appellants

JUDGMENT OF THE COURT

Delivered the 10th day of April 1992

MINUTE OF ORDER:	Applicant is granted an indemnity certificate pursuant to Section 15(1) Appeal Costs Fund Act
CATCHWORDS:

Counsel: Mr. S.S.W. Couper for the Appellants

Mr. P.H. Morrison Q.C. and with him Mr. G.J.

Radcliff for the Respondent

Solicitors:	Primrose Couper Cronin & Rudkin for the Appellants Robinson & Robinson for the Respondent
Hearing date(s):	19-20 February 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 44 of 1991
BETWEEN:

HILL CORCORAN CONSTRUCTIONS PTY LTD

(Plaintiff) Respondent

AND:

FRANK NAVARRO and JACQUELINE NAVARRO

(Defendants) Appellants

__________________________________________________

DAVIES JA
PINCUS JA
THOMAS J

__________________________________________________

Reasons of the Court delivered on the 10th day of
April 1992

__________________________________________________

"APPLICANT IS GRANTED AN INDEMNITY CERTIFICATE

PURSUANT TO SECTION 15(1) APPEAL COSTS FUND ACT."

__________________________________________________