Meridien AB Pty Ltd v Jackson
[2013] QCA 170
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- Unreported Judgment
- Appeal Determined (QCA)
- Meridien AB Pty Ltd v Jackson[2013] QCA 170
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Meridien AB Pty Ltd v Jackson[2013] QCA 170
Meridien AB Pty Ltd v Jackson[2013] QCA 170
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal – Further Order |
ORIGINATING COURT: | |
DELIVERED ON: | 24 June 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Margaret McMurdo P and Muir JA and Atkinson J |
ORDER: | The applicants be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid by the applicants and with respect to their own costs of the appeal. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where the appellants’ appeal was allowed with costs – where the applicants (who were the respondents on appeal) acted reasonably in seeking to uphold the carefully reasoned decision of the primary judge – where the applicants seek an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) – whether the applicants should be granted an indemnity certificate Appeal Costs Fund Act 1973 (Qld), s 15 Lauchlan v Hartley [1980] Qd R 149, cited |
COUNSEL: | No appearance by the appellants |
SOLICITORS: | HopgoodGanim for the appellants |
[1] THE COURT: The applicants were the unsuccessful respondents to an appeal from the decision of a judge of the trial division of this Court dismissing the appellants’ claim. In the claim the appellants sought, inter alia, specific performance of a contract of sale of an apartment, payment of the balance purchase price and damages for breach of contract. The central issues for determination on the trial, and on appeal, were:
1. whether, on the proper construction of s 27 of the Land Sales Act 1984 (the Act), a purchaser who wrongfully refuses to attend settlement and receive a registrable instrument of transfer obtains a right to avoid the contract; and
2. whether the applicants, by their conduct, waived any right to avoid the contract or are estopped from relying on any such right.
[2] The primary judge answered these questions in favour of the applicants. This Court answered the first question in favour of the appellants and found it unnecessary to answer the second question. This Court found that s 27 of the Act was ambiguously worded and that, despite its relatively plain language, it could not be read literally. The answer to the construction question was by no means obvious. The applicants acted reasonably in seeking to uphold the carefully reasoned decision of the primary judge. Although s 27 has now been amended in order to provide greater certainty of meaning, the decision of this Court may well provide greater certainty to a number of other unit purchases.
[3] In the circumstances, the exercise of the discretion under s 15 of the Appeal Costs Fund Act 1973 is enlivened[1] and this is an appropriate case in which to grant a certificate.
[4] Accordingly, it is ordered that the applicants be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 with respect to the costs ordered to be paid by the applicants and with respect to their own costs of the appeal.
Footnotes
[1] Lauchlan v Hartley [1980] Qd R 149.