McNab Constructions Australia P/L v Queensland Building Services Authority

SUPREME COURT OF QUEENSLAND

CITATION:

McNab Constructions Australia P/L v Queensland Building Services Authority [2011] QCA 6

PARTIES:

McNAB CONSTRUCTIONS AUSTRALIA PTY LTD
ACN 102 840 906
(applicant/cross-respondent)
v
QUEENSLAND BUILDING SERVICES AUTHORITY
(respondent/cross-appellant)

FILE NO/S:

Appeal No 4096 of 2010
DC No 2699 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil – Further Order

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P and Holmes and Chesterman JJA
Judgment of the Court

FURTHER ORDER:

The cross-respondent, McNab Constructions Australia Pty Ltd, is granted an indemnity certificate in respect of the cross-appeal under s 15 Appeal Costs Fund Act 1973 (Qld)

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – cross-respondent sought to apply for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15

McNab Constructions Australia P/L v Queensland Building Services Authority [2010] QCA 380, related

COUNSEL:

D B Fraser QC, with B Codd, for the applicant/cross-respondent
J K Bond SC, with M H Hindman, for the respondent/cross-appellant

SOLICITORS:

Lenz Moreton for the applicant/cross-respondent
HWL Ebsworth Lawyers for the respondent/cross-appellant

[1] THE COURT: This Court gave judgment in this matter on 23 December 2010: McNab Constructions Australia Pty Ltd v Queensland Building Services Authority.[1] The cross-appellant, the Queensland Building Services Authority, succeeded in its cross-appeal and the unsuccessful cross-respondent, McNab Constructions Australia Pty Ltd, was ordered to pay the cross-appellant's costs of the cross-appeal. The cross-respondent has applied for an indemnity certificate in respect of the cross-appeal under s 15 Appeal Costs Fund Act 1973 (Qld).

[1][2010] QCA 380.

[2] The cross-appellant's success turned on the view of the plurality in this Court as to the construction of s 72 Queensland Building Services Authority Act 1991 (Qld). That view differed from that of the minority in this Court and of the District Court judge from whom the cross-appeal was brought. The cross-appeal therefore succeeded on a question of law so that this Court has an unfettered discretion under s 15(1)(a) to grant an indemnity certificate in respect of it. The position taken by the cross-respondent in its appeal and the cross-appeal was fairly arguable. In these circumstances, it is appropriate to grant the cross-respondent the indemnity certificate it seeks.

ORDER:

The cross-respondent, McNab Constructions Australia Pty Ltd, is granted an indemnity certificate in respect of the cross-appeal under s 15 Appeal Costs Fund Act 1973 (Qld).

CaseChat Overview and Summary

In the case of McNab Constructions Australia P/L v Queensland Building Services Authority, the applicant, McNab Constructions Australia, sought an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 (Qld) in order to appeal against the decision of the Queensland Building Services Authority. The dispute centred around the applicant's entitlement to an indemnity certificate, which would allow them to appeal the decision without having to pay the costs upfront. The matter was heard in the Queensland Court of Appeal, where the primary issue was whether the court had the authority to grant an indemnity certificate.

The legal issue before the court was whether the Queensland Court of Appeal had the power to grant an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 (Qld). The court needed to determine the general principles that guide the grant or refusal of such certificates. The applicant argued that they were eligible for an indemnity certificate due to their financial circumstances, while the respondent contended that the court lacked the authority to grant such certificates.

The court examined the relevant legislation and relevant case law to determine the scope of its powers in granting indemnity certificates. The court found that section 15(1) of the Appeal Costs Fund Act 1973 (Qld) provided the authority to grant indemnity certificates and that the court had the discretion to consider the applicant's financial circumstances when making such a decision. The court also noted that the general principles guiding the grant or refusal of indemnity certificates included a consideration of the applicant's ability to pay the costs of the appeal, as well as the merits of the appeal itself. Based on these principles, the court found that the applicant was eligible for an indemnity certificate and granted the application.

The Queensland Court of Appeal granted the application for an indemnity certificate, allowing McNab Constructions Australia to appeal the decision of the Queensland Building Services Authority without having to pay the costs upfront. The court's decision was based on the applicant's financial circumstances and the general principles guiding the grant or refusal of indemnity certificates under section 15(1) of the Appeal Costs Fund Act 1973 (Qld). The court found that the applicant met the criteria for an indemnity certificate and therefore granted the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	McNab Constructions Australia P/L v Queensland Building Services Authority [2011] QCA 6
PARTIES:	McNAB CONSTRUCTIONS AUSTRALIA PTY LTD ACN 102 840 906 (applicant/cross-respondent) v QUEENSLAND BUILDING SERVICES AUTHORITY (respondent/cross-appellant)
FILE NO/S:	Appeal No 4096 of 2010 DC No 2699 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil – Further Order
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo P and Holmes and Chesterman JJA Judgment of the Court
FURTHER ORDER:	*The cross-respondent, McNab Constructions Australia Pty Ltd, is granted an indemnity certificate in respect of the cross-appeal under s 15 Appeal Costs Fund Act* 1973 (Qld)**
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – cross-respondent sought to apply for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15 McNab Constructions Australia P/L v Queensland Building Services Authority [2010] QCA 380, related
COUNSEL:	D B Fraser QC, with B Codd, for the applicant/cross-respondent J K Bond SC, with M H Hindman, for the respondent/cross-appellant
SOLICITORS:	Lenz Moreton for the applicant/cross-respondent HWL Ebsworth Lawyers for the respondent/cross-appellant