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

New South Wales Supreme Court

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

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

Corbett v Toll Stevedoring Pty Ltd & Ors [2007] NSWSC 749 CASES CITED : 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.

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

FILE NUMBER(S) : SC 20252 of 2005

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

CMC Lawyers - Plaintiff SOLICITORS : 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 loss component of this claim against Chubs Construction and against the current Supreme Court Defendant being Soliman & Sons Pty Ltd in the sum of $550,000 plus costs.