Order made by the Court of Appeal as to costs, application
for an indemnity certificate made under section 15 of the Appeal
Costs Fund Act 1973 - failure of primary judge to give adequate
Facts: Originally, this matter concerned a
decision by the Townsville City Council to approve a development
application made by Sunland Group Limited.
Bushland Grove Pty Ltd trading as Mt Low Developments had
exercised its right to appeal the Council's decision, and had
been successful in its appeal at first instance. Sunland Group
Limited sought leave to appeal that decision to the Court of
Appeal. Leave was granted and the appeal was allowed by the Court
of Appeal, which also ordered (amongst other things) that Bushland
Grove pay the costs of Sunland Group and the Council.
These proceedings were an application by Bushland Grove for an
indemnity certificate under section 15 of the Appeal Costs Fund Act
1973. The granting of such a certificate would entitle Bushland
Grove to payment from the 'appeal costs fund' of an amount
equal to Sunland Groups costs of the appeal, and its own costs of
the appeal (subject to a cap). The costs incurred by the Council
would still need to be covered wholly by Bushland Grove.
In granting the indemnity certificate, the Court of Appeal
There had been a failure by the primary judge to give adequate
reasons for two of the matters in dispute, with respect to which
Bushland Grove had made extensive written submissions; and
The failure by the primary judge to give adequate reasons was
not attributable to the conduct of Bushland Grove, or either of the
other parties, such that it was an appropriate case in which to
grant an indemnity certificate.
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