IBRAHIM -v- HERRING [No 2] [2012] WASC 508

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 508
Case No:	SJA:1091/2009	Heard:	ON THE PAPERS
Coram:	McKECHNIE J	Delivered:	28/12/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	MOHAMED TAREK IBRAHIM RAL STEVEN HERRING
Catchwords:	Costs ordered after appeal Application to delay enforcement No new principles
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15
Case References:	Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) WAR 308 Ibrahim v Herring (No 4) [2012] WASCA 56 Ibrahim v Herring [2010] WASC 190 Ibrahim v Herring [2011] WASCA 266 State Bank of Victoria v Parry (1989) WAR 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : IBRAHIM -v- HERRING [No 2] [2012] WASC 508 CORAM : McKECHNIE J HEARD : ON THE PAPERS DELIVERED : 28 DECEMBER 2012 FILE NO/S : SJA 1091 of 2009 BETWEEN : MOHAMED TAREK IBRAHIM

Appellant

AND

RAL STEVEN HERRING

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R G W BAYLY

File No : PE 27969 of 2007, PE 27970 of 2007, PE 27971 of 2007

Catchwords:

Costs ordered after appeal - Application to delay enforcement - No new principles

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) WAR 308
Ibrahim v Herring [2010] WASC 190
Ibrahim v Herring [2011] WASCA 266
Ibrahim v Herring [No 4] [2012] WASCA 56
State Bank of Victoria v Parry (1989) WAR 240

(Page 3)

1 McKECHNIE J: The appellant has filed an application purportedly in an appeal:

The applicant applies under section 15 of the civil enforcement act for suspension of the cost order on the ground of hardship.

The parties to this application have conferred about the issues giving rise to this application and have not resolved them.

The parties to this application have not conferred about the issues giving rise to this application because:

It is difficult to negotiate with the state solicitor personal and on every occasion the appellant approached the solicitor to settle a matter no results was achieved.

2 The application is misconceived. On 28 July 2010, Hall J gave judgment refusing leave to appeal: Ibrahim v Herring [2010] WASC 190. An appeal against that decision was subsequently dismissed: Ibrahim v Herring [2011] WASCA 266. On 13 March 2012 an application for stay of delivery of judgment was refused: Ibrahim v Herring [No 4] [2012] WASCA 56.

3 When, on 28 July 2010, Hall J ordered that the appeal be dismissed he also ordered the 'appellant to pay the respondent's costs as agreed, if not agreed to be taxed'. Costs were not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ibrahim v Herring [No 2]

Details

AGLC: Ibrahim v Herring [No 2] [2012] WASC 508
Case: [2012] WASC 508
Decision Date

CaseChat Overview and Summary

In the case of Ibrahim v Herring [No 2], the appellant, Mohamed Tarek Ibrahim, sought an order under section 15 of the Civil Judgments Enforcement Act 2004 (WA) to suspend the enforcement of a cost order. The respondent, Ral Steven Herring, opposed the application. The matter was heard on the papers by McKechnie J in the Supreme Court of Western Australia. The primary issue before the court was whether the appellant had demonstrated special circumstances that would justify the suspension of the enforcement of the cost order.

The court considered that a successful party is entitled to the fruits of their judgment, and hardship in meeting the judgment does not amount to sufficient reason to postpone judgment. The court also noted that the normal reason for a suspension order is the prospect or existence of an appeal in circumstances where the appeal may be frustrated if a stay is refused. The appellant did not demonstrate any special circumstances, and the application was refused.

The court further held that the appellant had engaged the legal process and lost. The bill was taxed long ago, and there were no special circumstances present. The application to suspend the enforcement of the cost order was dismissed.

The final orders of the court were that the application for suspension of the enforcement of the cost order be dismissed, and the respondent to have costs of the application.

Orders