Kimtran P/L v Downie Summary

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

HE COURTT: On the 26^th 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.

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.

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

Order:

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

CaseChat Overview and Summary

Kimtran P/L v Downie involved a dispute between Kimtran P/L, the appellant, and Downie, the respondent. The case was heard in the Queensland Court of Appeal, where the central issue was whether the lower court had the authority to grant an indemnity certificate to the respondent after the appeal had been allowed on the basis of an error of law. The dispute arose from a decision made in a previous proceeding, where the lower court had ruled against the appellant. The appellant subsequently appealed this decision on the grounds of legal error.

The primary legal issue the court had to address was whether the lower court had the power to grant an indemnity certificate to the respondent after the appeal was allowed due to an error of law. Specifically, the court needed to determine if the granting of such a certificate was permissible under the relevant legislative provisions and case law. The court also had to consider whether the timing of the indemnity certificate, granted post-appeal, was appropriate or if it affected the appellant's right to a fair trial and the principles of legal costs.

The court examined the legislative framework governing appeal costs funds and the conditions under which indemnity certificates could be issued. It concluded that the lower court had the statutory power to grant the indemnity certificate to the respondent even after the appeal was allowed on the grounds of an error of law. The court reasoned that the granting of the certificate did not prejudice the appellant's right to a fair trial and was consistent with the principles of legal costs. The court found that the timing of the certificate was not problematic and did not affect the outcome of the appeal. Consequently, the court upheld the lower court's decision to grant the indemnity certificate.

Kimtran P/L v Downie

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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