CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow (No 2) [2023] NSWCA 225

CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow (No 2) [2023] NSWCA 225

Applicants were entitled to indemnity costs in the Defamation proceedings from 7 April 2023 given the genuine compromise offered and Mr Morrow's unreasonable refusal. Applicants entitled to restitution of judgment sum paid under orders subsequently set aside. Costs orders in Commercial proceedings should be varied so that only relevant parties liable, preventing recovery against a party (The Checkout Pty Ltd) that would otherwise bear some of its own victory's costs.

Jurisdiction
Australia
Judgment Date
25 September 2023
Procedural Posture
Appeal / Post Judgment Costs and Consequential Orders
Outcome
Orders varied as proposed; indemnity costs granted post-offer; restitution of judgment sum; costs of amended notice of motion awarded.
Legal Topics
['costs' 'appeals' 'settlement Offers' 'restitution' 'order Variation']
['civil Procedure' 'defamation'] ['costs' 'appeals' 'settlement Offers' 'restitution' 'order Variation']

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Procedural Posture

Appeal / Post Judgment Costs and Consequential Orders

Legal Issues

  1. 1 ['Whether applicants are entitled to indemnity costs following settlement offers in defamation proceedings under s 40 Defamation Act 2005 (NSW) and UCPR r 20.26.' 'Whether an order for restitution should be made requiring repayment of judgment sum following setting aside of judgment.' 'Whether prior costs orders in commercial proceedings should be varied to exclude liability of one party.']

Ratio Decidendi

Applicants were entitled to indemnity costs in the Defamation proceedings from 7 April 2023 given the genuine compromise offered and Mr Morrow's unreasonable refusal. Applicants entitled to restitution of judgment sum paid under orders subsequently set aside. Costs orders in Commercial proceedings should be varied so that only relevant parties liable, preventing recovery against a party (The Checkout Pty Ltd) that would otherwise bear some of its own victory's costs.

Court Disposition

Orders varied as proposed; indemnity costs granted post-offer; restitution of judgment sum; costs of amended notice of motion awarded.

Orders

  • ["Vary order (4) made on 20 June 2023 in proceedings 2022/214060: first respondent/second cross-appellant and second respondent/third cross-appellant to pay applicants'/appellants'/cross-respondents' costs of the appeal and cross-appeal." "Respondent to pay applicants' costs of the amended notice of motion filed 25...