Multi-Service Group Pty Ltd (in liq) v Osborne

[2010] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

Multi-Service Group Pty Ltd (in liq) & Anor v Osborne & Anor [2010] QCA 172

PARTIES:

MULTI-SERVICE GROUP PTY LTD (IN LIQUIDATION)
ACN 071 610 127
(plaintiff/applicant/respondent)
ROBERT EUGENE MURPHY (AS LIQUIDATOR)
(second applicant/respondent)
v
GRAEME JOHN OSBORNE
(defendant/first respondent/applicant)
GRO SERVICES PTY LTD
ACN 083 003 445
(defendant/second respondent/applicant)

FILE NO/S:

Appeal No 11380 of 2009
Appeal No 11381 of 2009
SC No 4620 of 2006
SC No 5388 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Muir JA and Daubney J
Judgment of the Court

ORDER:

The applicants be granted an indemnity certificate in respect of each appeal

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 respondents 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, s 21

Cameron v Noosa Shire Council[2006] QCA 144, cited
Holdway v Arcuri Lawyers (A Firm)[2008] QCA 302, cited
Mitchell v Pacific Dawn Pty Ltd[2003] QCA 526, cited

COUNSEL:

D Savage SC, with I A Erskine, for the applicant
P Morrison QC, with P Tucker, for the respondent

SOLICITORS:

Tucker & Cowen for the applicant
Ernst & Young for the respondent

1. THE COURT: This Court allowed appeals against orders in proceedings BS4620/06 and BS5388/04 that the appellants' "application for reactivation" of the proceeding be refused. The applicant respondents have applied for an order that they be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) in respect of each of the appeals.

1. Section 15(1) of the Appeal Costs Fund Act 1973 (Qld) provides:

"15       Grant of indemnity certificate

(1)        Where an appeal against the decision of a court—
             (a)       to the Supreme Court;

(b)to the High Court of Australia from a decision of 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."

1. The Court's discretion to grant an indemnity certificate is unfettered[1] but, of course, must be exercised judicially on relevant considerations.

   [1]Appeal Costs Fund Act 1973 (Qld), s 21(1); Cameron v Noosa Shire Council [2006] QCA 144 at para [2].

1. The fate of the appeal was dependent, essentially, on two matters:  the correctness of the prior approach of the primary judge to the construction of Practice Direction No. 4 of 2002 and whether there was a factual error in the primary judge's reasons.

1. It was held that the primary judge's conclusion was based, at least in part, on a factual error.  That error was not one based in any way on the applicants' conduct or submissions.  That is a matter which supports the application.[2]

   [2]Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at para [17] and Holdway v Arcuri Lawyers (A Firm) [2008] QCA 302 at para [9].

1. The submissions at first instance by both parties accepted the principles expounded by the primary judge in ARC Holdings Pty Ltd v Riana Pty Ltd & Anor.[3]  Those principles were challenged on appeal and held to be erroneous.  In those circumstances it seems to be appropriate that the application be granted.

   [3][2008] QSC 191.

1. It is ordered that the applicants be granted an indemnity certificate in respect of each appeal.