Mekpine Pty Ltd v Moreton Bay Regional Council

[2016] QCA 85

SUPREME COURT OF QUEENSLAND

CITATION:

Mekpine Pty Ltd v Moreton Bay Regional Council [2016] QCA 85

PARTIES:

MEKPINE PTY LTD
ACN 084 587 744
(applicant)
v
MORETON BAY REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 11770 of 2013
LAC No 9 of 2012
LAC No 10 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from the Land Appeal Court – Further Order

ORIGINATING COURT:

Land Appeal Court at Brisbane – [2013] QLAC 5

DELIVERED ON:

5 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes CJ and Margaret McMurdo P and Morrison JA
Judgment of the Court

FURTHER ORDER:

Mekpine Pty Ltd is granted an indemnity certificate under s 15(1)(b) 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 – applicant applied for an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers
No appearance by the respondent

SOLICITORS:

Hillhouse Burrough McKeown Solicitors for the applicant
Legal Services Department, Moreton Bay Regional Council for the respondent

1. THE COURT:  This case concerned whether the present applicant, Mekpine Pty Ltd, was entitled to compensation for land acquired by the present respondent, Moreton Bay Regional Council.  The case turned on whether Mekpine’s rights under a lease of premises on a former lot which was amalgamated into a new lot was limited to that part of the new lot which previously lay within the former lot, or whether they extended to the entirety of the new lot.

2. This question was originally determined by the Land Court[1] in favour of Mekpine.  On appeal to the Land Appeal Court[2] it was determined in favour of the Council.  On appeal to this Court[3] it was determined in favour of Mekpine.  On appeal to the High Court it was determined, by majority, in favour of the Council.[4]  The High Court found that Mekpine’s interest in the land remained confined to that part of the new lot which previously lay in the former lot.

   [1]Mekpine Pty Ltd v Moreton Bay Regional Council [2012] QLC 46.

   [2]Moreton Bay Regional Council v Mekpine Pty Ltd [2014] QLAC 5.

   [3]Mekpine Pty Ltd v Moreton Bay Regional Council [2014] QCA 317.

   [4]Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7.

3. Mekpine has applied for the grant of an indemnity certificate under s 15(1)(b) Appeal Costs Fund Act 1973 (Qld) which relevantly provides:

   “Grant of Indemnity Certificate

   (1)Where an appeal against the decision of a court —

   …

   (b)to the High Court of Australia from a decisionof the Supreme Court;

   on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

4. As the Council’s appeal to the High Court of Australia from a decision of this Court succeeded on a question of law, the discretion under s 15(1)(b) is enlivened. The legal question for determination was novel and not straightforward. In these circumstances, this is an appropriate case in which to grant Mekpine an indemnity certificate under s 15(1)(b).

   Order:

5. Mekpine Pty Ltd is granted an indemnity certificate under s 15(1)(b) Appeal Costs Fund Act 1973 (Qld).