Mudie v Gainriver P/L

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

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

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

CaseChat Overview and Summary

In this case, Mudie, the appellant, sought to appeal a decision by Gainriver P/L, the respondent. The central issue in the dispute was whether the trial judge had erred in the application of the law in relation to a particular contract. The matter was heard in the Queensland Court of Appeal.

The court was required to decide whether the trial judge's application of the law to the contract was correct. Specifically, the appeal focused on whether there was a material error in the judge's interpretation of certain contractual terms. The appeal also sought to address the issue of costs, particularly in relation to the appeal costs fund and the circumstances under which an indemnity certificate could be granted.

The court found that the trial judge had indeed erred in the application of the law, which was a material error that warranted the allowance of the appeal. The court further held that the unsuccessful respondents were entitled to an indemnity certificate. This decision was based on the principle that if an appeal is allowed due to a material error of law, the unsuccessful party may be entitled to an indemnity certificate to cover their costs. The court's reasoning was grounded in the statutory provisions concerning the appeal costs fund and the circumstances under which indemnity certificates may be granted.

The final orders included the allowance of the appeal on the grounds of the material error of law and the granting of an indemnity certificate to the unsuccessful respondents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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