Wyong Shire Council v MCC Energy (No 2)

The Supreme Court of New South Wales, Court of Appeal, considered an application for an indemnity certificate under the *Suitor's Fund Act 1951* (NSW) in the matter of *Wyong Shire Council v MCC Energy (No 2)*. The appeal, which had been partially successful, resulted in an order that each party bear their own costs. The central issue before the Court was whether the first respondent was entitled to an indemnity certificate under section 6 of the *Suitor's Fund Act 1951* despite the costs order made on appeal.

The Court was required to determine the proper interpretation and application of section 6 of the *Suitor's Fund Act 1951* in circumstances where an appeal was only partially successful and the parties were ordered to pay their own costs. Specifically, the Court had to consider whether the criteria for granting an indemnity certificate were met, notwithstanding the absence of a specific order for the unsuccessful party to pay the successful party's costs.

Hodgson and Tobias JJA reasoned that the purpose of section 6 of the *Suitor's Fund Act 1951* was to provide a measure of protection to parties involved in appeals where the public interest was engaged. Their Honours noted that the Act was intended to facilitate such appeals by mitigating the financial risk to litigants. In this instance, the Court found that the first respondent was otherwise qualified for a certificate, and the specific costs order made on appeal did not preclude the granting of such a certificate.

Accordingly, the Court ordered that the first respondent be granted a certificate under section 6 of the *Suitor's Fund Act 1951*, provided they were otherwise qualified.