Aerospace Engineering Services Pty Ltd v Ibrahim

[2007] WASCA 33 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	AEROSPACE ENGINEERING SERVICES PTY LTD -v- IBRAHIM [2007] WASCA 33 (S)

CORAM : ROBERTS-SMITH JA

McLURE JA PULLIN JA

HEARD	: 5 DECEMBER 2006
DELIVERED	: 12 FEBRUARY 2007
SUPPLEMENTARY
DECISION	: 2 MARCH 2007
FILE NO/S	:  CACV 95 of 2005
BETWEEN	:  AEROSPACE ENGINEERING SERVICES PTY LTD Appellant

AND

RAGAB MOUSA MOHAMED IBRAHIM

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram	: MULLER DCJ
Citation	: IBRAHIM -v- AEROSPACE ENGINEERING

SERVICES PTY LTD [2005] WADC 129

File No : CIV 941 of 2002

[2007] WASCA 33 (S)

Catchwords:

Costs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 24A

Result:

The respondent pay the appellant's costs of the appeal and cross-appeal after

1 December 2005 to be taxed

Category: B

Representation:

Counsel:

Appellant	:	Mr P V Lansell
Respondent	:	Mr T H Offer

Solicitors:

Appellant	:	Jackson McDonald
Respondent	:	Peter J Griffin & Co

Case(s) referred to in judgment(s):

Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33

[2007] WASCA 33 (S)

JUDGMENT OF THE COURT

1. JUDGMENT OF THE COURT: These reasons relate to the costs of the appeal and cross-appeal in Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33.

2              On 12 February 2007 the Court ordered that the appeal and

cross-appeal be dismissed. The appellant sought an order that the respondent pay the appellant's costs of the appeal and cross-appeal incurred after 1 December 2005 to be taxed. The appellant relied on a letter dated 1 December 2005 to the respondent marked "without prejudice save as to costs", offering to settle the appeal and cross-appeal on the basis that:

"(a) our client will pay to you the judgment debt ($414,240.24) less statutory compensation paid to date ($86,485.24) and less amounts owing to the Health Insurance Commission and Centrelink (not known exactly but likely to exceed $60,000);

(b)	…
(c)	upon acceptance of our client's offer … above, you will sign a consent notice agreeing to the appeal and your cross-appeal being dismissed with no order as to costs."

3              It was agreed by the parties that, unless the Court made a costs order

based on the offer of 1 December 2005, the appropriate order in the
appeal and cross-appeal would be that there be no order as to costs.

4              The respondent opposes the costs order sought by the appellant on

the ground that the appellant's offer referred only to the judgment debt and made no express provision for the respondent's entitlement to post judgment interest on the judgment debt. Judgment was entered on 12 July 2005 and the offer was communicated to the respondent on 1 December 2005. There is no evidence of any express response from the respondent to the offer. We infer that the omission to include the respondent's statutory entitlement to interest would not have been an impediment to settlement if that matter had been raised by the respondent with the appellant. We are not satisfied that the appellant's omission to include the statutory entitlement to interest on the judgment sum played any part in the respondent's failure to accept the offer.

5 The policy of this Court, as reflected in O 24A of the Rules of the Supreme Court 1971 (WA), is to encourage a party to whom a fair and reasonable offer of compromise has been made to accept the offer and

[2007] WASCA 33 (S)

JUDGMENT OF THE COURT

bring the appeal to an end. This Court is concerned with substance rather than technical matters that constitute no real impediment to settlement. Accordingly, we order that the respondent pay the appellant's costs of the appeal and the cross-appeal incurred after 1 December 2005 to be taxed.