New South Wales Court of Appeal CITATION: Wyong Shire Council v MCC Energy (No 2) [2005] NSWCA 196 HEARING DATE(S): On papers JUDGMENT DATE: 10 June 2005 JUDGMENT OF: Hodgson JA; Tobias JA DECISION: First respondent be granted a certificate under s6 of the Suitor's Fund Act 1951 if otherwise qualified. CATCHWORDS: COSTS - Appeal partially successful - Order that each party pay their own costs - Whether respondent entitled to indemnity certificate under Suitor's Fund Act 1951 s 6 LEGISLATION CITED: Suitor's Fund Act 1951 CASES CITED: N/A Wyong Shire Council MCC Energy Pty Limited PARTIES: Scott James Ford Lorraine Gayle Ford FILE NUMBER(S): CA 40178/04 A: Mr M Craig QC / P Tomasetti COUNSEL: R: S Duggan / E Ozen A. Abbott Tout, Sydney SOLICITORS: 1R: Coudert Brothers, Sydney 2R & 3R: Aubrey Brown Partners, Wyong LOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): L&E 41031/02 LOWER COURT JUDICIAL OFFICER: Cowdroy J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40178/04 L&E 41031/02 HODGSON JA TOBIAS JA 10 June 2005 WYONG SHIRE COUNCIL v MCC ENERGY PTY LIMITED & ORS (No. 2) Judgment 1 THE COURT: In this matter judgment was delivered on 29 March 2005 when the following orders were made: (1) Appeal allowed in part. (2) Order 2 of the Orders made by the Land and Environment Court on 18 February 2004 is stayed until further order of that Court to enable the determination of development application DA 1370/02 either by the Appellant having regard to the judgment of this Court or by the Land and Environment Court on appeal to it pursuant to s 97 of the Environmental Planning & Assessment Act 1979 in respect of that development application. (3) Reserve liberty to apply to the Land and Environment Court on seven days notice by any of the parties in respect of Order 2. (4) That each party pay its own costs of the appeal. 2 The basis of Order 4 above is set out in [106] and [107] of the original judgment. As both the Council and MCC were partially successful on the appeal, it was considered appropriate that each party should pay its own costs thereof. 3 On 10 May 2005 MCC filed a Notice of Motion seeking that it be granted a certificate pursuant to s 6 of the Suitor's Fund Act 1951 (the Act). The other parties to the appeal do not oppose that motion. Further, the parties have consented to the motion being determined by ourselves given that Sheller JA, the other member of the Court, has retired. 4 The granting of a certificate under s 6 is predicated upon an appeal to this Court succeeding when, on application, the Court is empowered to grant to the respondent to the appeal an indemnity certificate in respect thereof. In the present case, MCC was the respondent to the appeal and the appellant, the Council, was partially successful. Consequently the appeal was allowed in part. In our opinion, that is sufficient to enliven the power of the Court to grant a certificate. 5 Although MCC as respondent has not been ordered to pay the Council's costs of the appeal, nonetheless, if an indemnity certificate is granted, that certificate will entitle MCC to be paid from the Fund 50% of the costs of the appeal incurred by it: see s 6(2)(b). In our opinion, it is appropriate that such a certificate be granted. 6 Accordingly, the Court orders that the first respondent be granted a certificate under s 6 of the Suitor's Fund Act 1951 if otherwise qualified. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.