Rahmath v. Louisiana Land & Exploration Co., (1989) 104 A.R. 391 (CA)

• Judge: Laycraft, C.J.A., Stevenson and Stratton, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 14, 1989
• Jurisdiction: Alberta
• Citations: (1989), 104 A.R. 391 (CA)

Rahmath v. Louisiana Land & Expl. (1989), 104 A.R. 391 (CA)

MLB headnote and full text

Mohammed Rahmath (appellant) v. The Louisiana Land & Exploration Company and L.L. & E. Canada Ltd. (respondents)

(No. 19853)

Indexed As: Rahmath v. Louisiana Land & Exploration Co.

Alberta Court of Appeal

Laycraft, C.J.A., Stevenson and Stratton, JJ.A.

December 14, 1989.

Summary:

Following a decision on appeal (see 97 A.R. 246) an issue of costs of the appeal arose because of a payment into court prior to trial by the defendant.

The Alberta Court of Appeal awarded costs of the appeal to the successful plaintiff/appellant because the offer to compromise was not renewed by the defendant after the appeal commenced.

Practice - Topic 7231

Costs - Party and party costs - Payment into court - Effect of, on judge's discretion to award costs - The Alberta Court of Appeal referred to rule 174 which prescribes an award of costs where a defendant has made a payment into court under rule 166 or where an offer of judgment was made under rule 169 - The court stated that the policy of rule 174 is more stringent than were the previous rules in limiting the discretion of the court (see paragraph 8).

Practice - Topic 7239

Costs - Party and party costs - Payment into court - On appeal - In 1987 a defendant paid $6,422 into court which was not accepted by the plaintiff and the money was paid out of court in July 1987 - In 1989 the plaintiff was successful on appeal but recovered only $6,156 - The defendant argued that the plaintiff should be deprived of costs of the plaintiff's successful appeal - The Alberta Court of Appeal held that the plaintiff was entitled to costs of appeal because of the failure of the defendant to renew or replace the offer of compromise after the trial was concluded and the appeal was commenced (see paragraph 9).

Cases Noticed:

Davis v. Caproco Corrosion Prevention Ltd. (1987), 76 A.R. 314; 50 Alta. L.R.(2d) 23, refd to. [para. 5].

Smith v. Mullin Estate (1976), 1 A.R. 263, refd to. [para. 8].

Wyss Estate v. Crooks (1978), 10 A.R. 209, refd to. [para. 8].

Whittle v. Davies (1987), 104 A.R. 336; 45 D.L.R.(4th) 331 (Alta. C.A.), refd to. [para. 8].

Statutes Noticed:

Rules of Court (Alta.), rule 174 [para. 6].

Counsel:

B.V. Weldon, for the appellant;

C. McCreary, for the respondents.

This appeal was heard by Laycraft, C.J.A., Stevenson and Stratton, JJ.A., of the Alberta Court of Appeal. The decision of the Court of Appeal was delivered by Laycraft, C.J.A., at Calgary, Alberta, on December 14, 1989.