Peden P/L v Bortolazzo

[2006] QCA 405

SUPREME COURT OF QUEENSLAND

CITATION:

Peden P/L & Ors v Bortolazzo [2006] QCA 405

PARTIES:

PEDEN PTY LTD ACN 080 906 485
AS TRUSTEE FOR THE DUNN FAMILY TRUST
(first plaintiff/first respondent)
PETER DUNN and DENISE DUNN
(second plaintiffs/second respondents)
v

CELINA MARIA BORTOLAZZO
(second defendant/applicant/appellant)

FILE NO/S:

Appeal No 470 of 2006

DC No 201 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil) - Further Order

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Judgment delivered 15 September 2006
Further Order delivered 20 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2006

JUDGES:

McMurdo P, White and Philippides JJ

Further Order of the Court

ORDER:

Application for indemnity certificate refused

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 - whether this is an appropriate case to grant an indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15(1)

Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1, considered

Hussain v Lancaster City Council [2000] QB 1, applied

Smith v Scott [1973] 1 Ch 314, applied

Wilkie v Blacktown City Council (2002) 121 LGERA 444, applied

COUNSEL:

M A Jonsson for the applicant/appellant

E J Morzone for the respondents

SOLICITORS:

Bennett & Philp, town agents for Vince Martin & Co (Innisfail) for the applicant/appellant

Vandeleur & Todd for the respondents

1. THE COURT: This Court delivered its judgment in this matter on 15 September 2006. The application for leave to appeal was granted, the appeal allowed, the decision of the District Court set aside and instead it was ordered that the District Court Appeal from the decision of the Magistrates Court at Innisfail on 5 July 2005 be dismissed with costs to be assessed. The respondents were then given leave to provide written submissions as to their foreshadowed application for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld).

1. Section 15(1) gives this Court an unfettered discretion to grant the respondents an indemnity certificate in respect of an appeal to this Court which succeeds on a question of law.

1. The respondents rightly submit that the appeal succeeded on a question of law, namely whether the appellant lessor was liable in nuisance to her lessee's neighbour, who was not a lessee of the appellant, by allowing the appellant's lessee who created a nuisance to remain in possession.

1. The respondents further contend that this was an important legal issue which clarified and limited the boundaries of this Court's earlier decision in Aussie Traveller Pty Ltd v Marklea Pty Ltd.[1]  The respondents submit that those circumstances make this an appropriate case in which to grant it an indemnity certificate.

   [1][1998] 1 Qd R 1.

1. This Court's previously delivered reasons for judgment in this appeal demonstrate that the law applicable to the unchallenged facts here was well settled.  The appellant lessor was not liable to her lessee's neighbour, who was not a lessee of the appellant, for a nuisance created by the appellant's lessee, unless the lessor authorized the nuisance either expressly or the nuisance was certain to result from the purposes for which the property was let:  Smith v Scott,[2] Hussain v Lancaster City Council[3] and Wilkie v Blacktown City Council.[4]  The respondents' contrary submissions to the District Court and to this Court proposed a novel development of the law and misconstrued the effect of Aussie Traveller.  We are not satisfied that in these circumstances the respondents should have their costs paid effectively from public funds.  We would refuse the respondents' application for an indemnity certificate for their costs of the appeal.

   [2][1973] 1 Ch 314.

   [3][2000] QB 1.

   [4](2002) 121 LGERA 444, [61].

Order

1. The respondents' application for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) is refused.