Kimtran P/L v Downie

Case •

[2003] QCA 454

•

26 September 2003

SUPREME COURT OF QUEENSLAND

CITATION:

Kimtran P/L & Anor v Downie & Anor [2003] QCA 454

PARTIES:

KIMTRAN PTY LTD and BIRCHCROFT PTY LTD
(appellants/respondents)
v
PHILIP GRAEME DOWNIE and SUSAN RUTH CARTER
(respondents/applicants/appellants)

FILE NO/S:

Appeal No 5473 of 2003
DC No 4448 of 2002

DIVISION:

Court of Appeal

PROCEEDINGS:

Application for extension of time – Further Order
Application for leave s118 DCA (Civil) – Further Order

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Judgment delivered 26 September 2003
Further Order delivered 24 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2003

JUDGES:

McMurdo P, Dutney and Philippides JJ
Judgment of the Court

FURTHER ORDER:

The respondents are granted an indemnity certificate in respect of the appeal under s 15 Appeal Costs Fund Act 1973 (Qld)

CATCHWORDS:

APPEAL AND NEW TRIAL – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where appeal allowed upon an error of law – where respondents granted an indemnity certificate

COUNSEL:

DJS Jackson QC, with MJF Burnett, for the appellants/respondents
P Hackett for the respondents/applicants/appellants

SOLICITORS:

Gadens Lawyers for the appellants/respondents
H Drakos and Company for the respondents/applicants/appellants

  1. HE COURTT: On the 26th of September 2003 this Court granted the applicants/appellants leave to appeal, allowed the appeal, set aside orders made in the District Court and substituted an order that the respondent pay the costs of this appeal and of the appeal to the District Court to be assessed on the standard basis.

  1. The respondents to the appeal have applied for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). They rightly contend that the appeal succeeded because of an error of law made by the learned primary Judge and that they did not contribute to this error.

  1. In these circumstances it is appropriate to exercise the discretion provided under s 15 Appeal Costs Fund Act 1973 (Qld) in their favour.

  1. Order:

The respondents are granted an indemnity certificate in respect of the appeal under s 15 Appeal Costs Fund Act 1973 (Qld).

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