Ibrahim v PERI Australia Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ibrahim v PERI Australia Pty Limited [2013] NSWCA 328

Hearing dates:

18 September 2013

Decision date:

18 September 2013

Before:

Beazley P at [1], [34];
Leeming JA at [32]

Decision:

Summons for leave to appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - leave to appeal - whether primary judge erred in making order as to costs on discontinuance - no error.

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999

Cases Cited:

Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; 44 FCR 194
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Fordyce v Fordham [2006] NSWCA 274; 67 NSWLR 497
ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; 101 FCR 548
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622

Category:

Principal judgment

Parties:

Romeo Ibrahim (Applicant)
PERI Australia Pty Limited (Respondent)

Representation:

Counsel:
D K L Raphael (Applicant)
E T Finnane (Respondent)
Solicitors:
Penhall & Co (Applicant)
Polczynski Lawyers (Respondent)

File Number(s):

2013/73780

 Decision under appeal 

Jurisdiction:

9111

Citation:

Peri v A1 Civil Formwork Pty Ltd [2013] NSWSC 73

Date of Decision:

2013-02-13 00:00:00

Before:

Macready AsJ

File Number(s):

2012/223507

Judgment

1. BEAZLEY P: The applicant seeks leave to appeal from a costs order made by Associate Justice Macready on 13 February 2013 when his Honour granted leave to the respondent to discontinue proceedings brought against the applicant and two other defendants relating to certain scaffolding that had initially been hired and later sold to the first defendant. There was a retention of title clause in the sale agreement between the respondent and the first defendant. The third defendant was the principal of the first defendant and had guaranteed payment of moneys due by the first defendant to the respondent.

1. Apart from the payment of an initial sum of $10,000, the monthly hire charges were not paid nor was the sale price ever paid. The applicant, the second defendant in the proceedings, had obtained possession of the scaffolding and had used it for the purpose of building projects on various building sites.

1. Both the hire arrangement and the sale to the first defendant had been at the request of the applicant, who purported to act as agent of the first defendant.

1. There was a further hiring agreement between the respondent and the first defendant in respect to which the applicant also purportedly acted as agent for the first defendant. Hiring fees in respect of that agreement were also…