McNab Constructions Australia P/L v Queensland Building Services Authority

[2011] QCA 6

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).