Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Baulderstone Hornibrook Pty. Ltd. v Beneficial Finance Corporation Limited[1998] QCA 430

Baulderstone Hornibrook Pty. Ltd. v Beneficial Finance Corporation Limited[1998] QCA 430

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

Appeal No. 5499 of 1998

 

Brisbane

 

[Baulderstone Hornibrook P/L v. BFC]

 

BETWEEN:

BAULDERSTONE HORNIBROOK PTY. LTD.

ACN 002 625 130

(Applicant) Appellant

 

AND:

BENEFICIAL FINANCE CORPORATION LIMITED

ACN 007 597 202

(Respondent) Respondent

Pincus J.A.

Thomas J.A.

Byrne J.

Judgment delivered 6 November 1998.

Further order delivered 18 December 1998.

 

Further order of the Court.

APPLICATION FOR INDEMNITY CERTIFICATE REFUSED.

CATCHWORDS:

APPEALS - indemnity certificate - S. 15(1) Appeal Costs Fund Act 1973.

Counsel:

Mr. P.A. Keane Q.C., with him Mr. A.M. Daubney for the applicant/ appellant

Mr. J.S. Douglas Q.C., with him Mr. K.B. Varley, for the respondent

Solicitors:

Stubbs Barbeler Grant for the applicant/appellant

Clarke and Kann Lawyers for the respondent

Hearing Date:

24 August 1998

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

Appeal No. 5499 of 1998

 

Brisbane

 

Before

Pincus J.A.

Thomas J.A.

Byrne J.

 

[Baulderstone Hornibrook P/L v. BFC]

 

BETWEEN:

BAULDERSTONE HORNIBROOK PTY. LTD.

ACN 002 625 130

(Applicant) Appellant

 

AND:

BENEFICIAL FINANCE CORPORATION LIMITED

ACN 007 597 202

(Respondent) Respondent

 

REASONS FOR FURTHER ORDER - THE COURT

 

Judgment delivered 6 November 1998

Further order delivered 18 December 1998

 

  1. The unsuccessful respondent (Beneficial Finance Corporation Limited) has applied for an indemnity certificate in respect of the appeal.  Its failure to apply at the conclusion of the Court of Appeal hearing is said to be the consequence of the court permitting submissions on the appeal to be made on the application for leave.  Submissions on the question of costs, including whether an indemnity certificate was sought, would still be expected in that situation, but presumably the truncated procedure may have contributed to this oversight.  The applicants' solicitors further state that they were unaware of practice direction no. 2 of 1982, which we assume to be a reference to practice direction no. 1 of 1982.
  1. Whilst the explanation for failure to comply with the practice direction is less than satisfactory, it is to the substance of the application that we turn our attention.  The ground upon which the court has been asked to grant a certificate is stated as follows:

"The Court of Appeal's decision was based on questions of law, particularly the interpretation of sections 72 and 99 of the Queensland Building Services Authority Act 1991.  There was, prior to the decision of this Honourable Court, no authority for the submission that a mortgagee in possession of a building site could be "a person who carried out building work" under section 72 of the Queensland Building Services Authority Act".

  1. The position is that the applicant was a litigant who chose to raise a particular preliminary point which if successful would have achieved its end of avoiding potential liability through avoiding becoming a party.  The point it raised was upheld by the Tribunal and in the District Court, but failed in this court.  It is true that there was prior to the present decision no authority for the potential liability of the mortgagee in possession.  More specifically, there was no authority either way on the question, but a perusal of the relevant legislation would expose the arguability of the relevant proposition.  This is not a case where for example a litigant is disadvantaged by reversal in a court of appeal of a line of authority on which a litigant has reasonably relied.  In such a case and indeed in some other situations where it would be unjust for a litigant to bear responsibility for the other party's costs the discretion may well be exercised in favour of an applicant.  However the present case is essentially one of a litigant who elected to take a point on which there was no authority other than the statute and on which it failed.  The application for a certificate should be rejected.
Close

Editorial Notes

  • Published Case Name:

    Baulderstone Hornibrook P/L v BFC

  • Shortened Case Name:

    Baulderstone Hornibrook Pty. Ltd. v Beneficial Finance Corporation Limited

  • MNC:

    [1998] QCA 430

  • Court:

    QCA

  • Judge(s):

    Pincus JA, Thomas JA, Byrne J

  • Date:

    18 Dec 1998

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Andric t/a Aspen Constructions Pty Ltd v Queensland Building Services Authority [2010] QCAT 4461 citation
Aspen Constructions Pty Ltd v Queensland Building Services Authority [2010] QCAT 4301 citation
D'Arro v Queensland Building and Construction Commission [2016] QCATA 763 citations
Mahony v Queensland Building Services Authority [2013] QCA 323 1 citation
McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380 2 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.