Sam Chamma v Solima and Sons - [2008] NSWSC 382

CITATION: Sam Chamma v Solima & Sons & Anor [2008] NSWSC 382

HEARING DATE(S): 21 April 2008

JUDGMENT DATE :
7 May 2008

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 24

LEGISLATION CITED: Uniform Civil Procedure Rules
Workers Compensation Act 1987
Workers Compensation Regulation

CASES CITED: Corbett v Toll Stevedoring Pty Ltd & Ors [2007] NSWSC 749
Calderbank v Calderbank [1975] 3 All ER 333
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322.

PARTIES: Sam Chamma - Plaintiff
Soliman & Sons Pty Ltd - First Defendant
Chubs Construction Pty Ltd - Second Defendant

FILE NUMBER(S): SC 20252 of 2005

COUNSEL: Mr P Semmler QC with Mr G Walsh- Plaintiff
Mr P Jones - First Defendant
Mr D O'Dowd - Second Defendant

SOLICITORS: CMC Lawyers - Plaintiff
Lee and Lyons Lawyers - Frist Defendant
Bartier Perry - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

7 May 2008

No: 20252 of 2005

Sam Chamma
v
Soliman & Sons Pty Ltd – First Defendant
Chubs Construction Pty Ltd – Second Defendant
JUDGMENT

1 On 5 March 2008, I published reasons for judgment in this matter. I deferred making any orders until the parties had an opportunity to consider the reasons and make submissions regarding costs. Such submissions were made on 21 April.

2 On 21 April, my attention was drawn to some arithmetical errors in the published reasons, which I correct in the schedule to this judgment.

3 There is consent to a verdict being entered against the First Defendant (Soliman) for $1,402,460 and against the Second Defendant (Chubs) for $890,676. It should be declared that those sums are not cumulative and that whole or part satisfaction of one verdict should pro tanto satisfy the other.

4 In relation to costs against Soliman, Mr Semmler QC, senior counsel for the Plaintiff, relied upon an offer of compromise dated 29 August 2007 served upon Soliman’s solicitors, purportedly pursuant to rule 20. 26 of the Uniform Civil Procedure Rules (UCPR). The compromise offered on 29 August 2007 during the trial was to accept $1,182,195 plus costs, inclusive of Workers Compensation payments and Mr Semmler submitted that in accordance with rule 42.14, his client is entitled to costs on the ordinary basis up to 11am on 30 August 2007 and on an indemnity basis thereafter. Mr Jones, counsel for Soliman, conceded that his client should bear some proportion of the Plaintiff’s costs on an indemnity basis, the offer not having been accepted.

5 With regard to Chubs, Mr Semmler contended that is should pay indemnity costs from 31 August 2006. This contention arises from the fact that on 31 August 2006, a letter was sent by the Plaintiff’s solicitor to Chubs’ solicitors in the following terms (omitting formal parts):

“For the purposes of Regulation 94 of the Workers compensation Regulation 2003, the Plaintiff offers to settle the past and future economic…

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 Sam Chamma v Solima and Sons

Details

AGLC: Sam Chamma v Solima and Sons [2008] NSWSC 382
Case: [2008] NSWSC 382
Decision Date: 7 May 2008

CaseChat Overview and Summary

In Sam Chamma v Soliman & Sons & Anor, the plaintiff, Sam Chamma, brought an action against the first defendant, Soliman & Sons Pty Ltd, and the second defendant, Chubs Construction Pty Ltd, seeking compensation for injuries sustained in a workplace accident. The dispute involved determining liability and damages, as well as resolving the issue of costs following failed settlement offers. The case was heard by Justice Patten in the Supreme Court of New South Wales. The central legal issues before the court were whether the plaintiff was entitled to indemnity costs against the second defendant, Chubs, and if so, from what date, and whether the plaintiff's costs should include fees for two counsel, including Queen's Counsel. The court examined the circumstances of two settlement offers made by the plaintiff to Chubs, one during the trial and another during mediation. The court found that Chubs' refusal to accept these offers was unreasonable, entitling the plaintiff to indemnity costs from the dates of the respective offers. Justice Patten also ruled that the plaintiff was entitled to costs for two counsel, considering the complexity and magnitude of the case.

The court concluded that the plaintiff was entitled to indemnity costs against Chubs from the date of the first settlement offer, 15 September 2006, and against Soliman from 29 August 2007, the date of the second offer. The court further ordered that the costs should be apportioned between the defendants according to their respective liabilities. Additionally, the court granted the plaintiff's request for fees for two counsel, including Queen's Counsel, due to the nature and difficulty of the case. Justice Patten also ruled that the plaintiff must repay a portion of the damages received from workers' compensation.

Orders