Tep v ATS Australasian Technical Services Pty Ltd

[2013] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 213

PARTIES:

CHAN KOROP TEP
(appellant)
v
ATS AUSTRALASIAN TECHNICAL SERVICES PTY LTD
ABN 71 065 220 831
(respondent)

FILE NO/S:

Appeal No 9286 of 2012
SC No 6272 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and Gotterson JJA and Douglas J
Judgment of the Court

ORDERS:

1.    The respondent is to pay the appellant’s costs of the appeal.

2. The respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellant’s appeal was upheld on the basis that the trial judge’s finding against him on liability was based on a finding of fact not open on the evidence and made without notice to him – where the appellant applies for his costs of the appeal on the standard basis – whether costs should be awarded – where the respondent applies for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 – where the trial judge’s finding which in the circumstances constituted an error of law was contrary to the respondent’s submission at trial – whether in the circumstances the respondent should be granted an indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15

Tep v ATS Australasian Technical Services Pty Ltd[2013] QCA 180, cited

COUNSEL:

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

SOLICITORS:

McNamara & Associates for the appellant
MVM Legal for the respondent

1. :THE COURT  On 12 July 2013, this court allowed the appellant’s appeal[1] against judgment given against him in his action for damages for personal injuries.  The appeal was upheld on the basis that the trial judge’s finding against the appellant on liability was based on a finding of fact not open on the evidence and made without notice to him.

   [1]Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 180.

1. The appellant now seeks his costs of the appeal on the standard basis, which he should have. The respondent applies for an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973, which permits the court to grant a respondent an indemnity certificate where an appeal on a question of law succeeds. The trial judge’s finding, the making of which amounted to error of law in this case, was not the product of, and indeed was contrary to, the submissions of the respondent’s counsel at trial. In those circumstances, the respondent should have an indemnity certificate.

1. The orders are:

1.The respondent is to pay the appellant’s costs of the appeal.

2.The respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973.