Tahiraj v Smith

[1992] QCA 291

IN THE COURT OF APPEAL

[1992] QCA 291

QUEENSLAND

Appeal No. 90 of 1991

BETWEEN:

SOFIA TAHIRAJ

(Plaintiff) Respondent

- and -

KEVIN SMITH

(Defendant) Appellant

JUDGMENT OF THE COURT - COSTS ONLY

Delivered the Third day of September 1992

The court delivered judgment in this matter on 25 June 1992. It allowed the appeal and set aside the judgment of the court below for $118,633.00 and in lieu thereof ordered that their be judgment for the respondent (plaintiff) for $98,633.00. The order for costs made below was ordered to stand, and the respondent was ordered to pay the appellant's costs of the appeal. However, by consent, it was directed that the order regarding the costs of the appeal not take effect until there had been an opportunity for written submissions to be considered.

The Court has been informed that, by a letter bearing
the date January 24, 1992, from the respondent's solicitors
to the appellant's solicitors, the respondent had offered
"to compromise the Appeal on the basis of a reduction of the
judgment sum by $20,000.00 ie. from $118,633.00 to
$98,633.00, with the costs order remaining as at present."
The letter concluded:

"Please note ... that this is an open letter and we reserve our client's right to bring it to the attention of the Court of Appeal in relation to the question of costs if your client proceeds with the Appeal."

The appellant has sought to answer the respondent's submission that, in the circumstances, the appellant, not the respondent, should bear the costs of the appeal by pointing out that the respondent did not offer to pay costs incurred by the appellant in relation to the appeal, to the time of the offer, which it is said amounted to approximately $5,000.00. However, there is no assertion that that was the reason why the offer was not accepted or why a counter offer seeking those costs was not made.

In the circumstances, the appropriate order is that the respondent pay the appellant's costs of and incidental to the appeal up to the offer of compromise on 24 January 1992 and that the appellant otherwise pay the respondent's costs of and incidental to the appeal.

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 90 of 1991

Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice Derrington

BETWEEN:

SOFIA TAHIRAJ

(Plaintiff) Respondent

- and -

KEVIN SMITH

(Defendant) Appellant

JUDGMENT OF THE COURT - COSTS ONLY

Delivered the Third day of September 1992

MINUTE OF ORDER:

Respondent to pay appellant's costs of and incidental to the appeal up to and including 24 January 1992 and appellant otherwise to pay the respondent's costs of and incidental to the appeal

Counsel:	Williams Q.C., with him Egan, for the appellant
North for the respondent
Solicitors:	Biggs & Biggs for the appellant Kenyons for the respondent

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 90 of 1991

BETWEEN:

SOFIA TAHIRAJ

(Plaintiff) Respondent

- and -

KEVIN SMITH

(Defendant) Appellant

The President
Mr Justice Pincus
Mr Justice Derrington

Judgment of the Court as to costs only delivered on the Third day of September, 1992

RESPONDENT TO PAY APPELLANT'S COSTS OF AND INCIDENTAL TO THE APPEAL UP TO AND INCLUDING 24 JANUARY 1992 AND APPELLANT OTHERWISE TO PAY RESPONDENT'S COSTS OF AND INCIDENTAL TO THE APPEAL.