Mudie v Gainriver P/L

[2001] QCA 413

SUPREME COURT OF QUEENSLAND

CITATION:

Mudie v Gainriver P/L & Ors [2001] QCA 413

PARTIES:

KAREN GAYE MUDIE
(applicant/appellant)
v
GAINRIVER PTY LTD ACN 010 965 929
(first respondent/first respondent)
GATTON SHIRE COUNCIL
(second respondent/second respondent)

FILE NO/S:

Appeal No 142 of 2001
P&E No 1387 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal – Further Order

ORIGINATING COURT:

Planning and Environment Court at Brisbane
Judgment delivered on 14 September 2001

DELIVERED ON:

Further order delivered on 2 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2001

JUDGES:

Davies and Thomas JJA, White J
Further Order of the Court

FURTHER ORDER:

The respondents are granted an indemnity certificate in respect of the appeal

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 unsuccessful respondents granted an indemnity certificate

Appeal Costs Fund Act 1973 (Qld)

COUNSEL:

A Vasta for the appellant
P J Lyons QC for the respondents

SOLICITORS:

Andrew  P Abaza for the appellant
King & Company for the first and second respondents

1. THE COURT: The unsuccessful respondents, who have been ordered to pay the appellant’s costs of the appeal, have applied for a certificate under the Appeal Costs Fund Act 1973. The appeal was allowed upon an error of law. The submissions made by the respondents at trial recognised that a balancing exercise was necessary and it cannot fairly be said that the respondents led the Planning and Environment Court into error. Although they submitted that his Honour should be influenced by the Council’s attitude they did not seek a favourable result on the reasoning that his Honour eventually employed. In all the circumstances we consider that it is appropriate that the respondents be granted an indemnity certificate in respect of the appeal.

Order

1. The respondents are granted an indemnity certificate in respect of the appeal.