Eppinga v Kalil & Anor (No 2) [2022] NSWDC 591

Eppinga v Kalil & Anor (No 2) [2022] NSWDC 591

The plaintiffs discontinued their defamation claim while the defendants' fifth draft defence remained on foot. UCPR r 42.19 therefore governed the costs consequence of discontinuance, and the plaintiffs did not establish any sufficient reason to depart from the usual order that a discontinuing plaintiff pay the defendants' costs. UCPR r 42.20 did not apply because the defence was not finally struck out. The plaintiffs' objections to the particulars were largely technical, pedantic, unnecessary and disproportionate in a small defamation claim, and their pursuit of a prolonged personal costs application against the defendants' solicitors was wholly out of proportion to the issues and had...

Jurisdiction
Australia
Judgment Date
02 December 2022
Procedural Posture
Costs Application in Discontinued Defamation Proceedings / After Discontinuance of the Plaintiffs' Defamation Claim
Outcome
The defendants obtained an order that the plaintiffs pay the defendants' costs of the discontinued defamation proceedings and the costs applications on an indemnity basis.
Legal Topics
['costs After Discontinuance' 'indemnity Costs' 'defamation Pleadings' 'particulars of Justification' 'personal Costs Orders Against Solicitors' 'proportionality in Litigation']
['civil Procedure' 'costs' 'defamation'] ['costs After Discontinuance' 'indemnity Costs' 'defamation Pleadings' 'particulars of Justification' 'personal Costs Orders Against Solicitors' 'proportionality in Litigation']

Case Brief

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Procedural Posture

Costs Application in Discontinued Defamation Proceedings / After Discontinuance of the Plaintiffs' Defamation Claim

Legal Issues

  1. 1 ["Whether the plaintiffs, having discontinued their defamation proceedings, should pay the defendants' costs under UCPR r 42.19." "Whether any costs should be carved out or awarded to the plaintiffs in relation to challenges to the defendants' amended defences and particulars." 'Whether UCPR r 42.20 applied because earlier versions of the defence had been struck out.' "Whether the defendants' costs should be payable on an indemnity basis." "Whether the plaintiffs' conduct of the interlocutory pleading dispute and personal costs application was disproportionate or otherwise justified indemnity costs."]

Ratio Decidendi

The plaintiffs discontinued their defamation claim while the defendants' fifth draft defence remained on foot. UCPR r 42.19 therefore governed the costs consequence of discontinuance, and the plaintiffs did not establish any sufficient reason to depart from the usual order that a discontinuing plaintiff pay the defendants' costs. UCPR r 42.20 did not apply because the defence was not finally struck out. The plaintiffs' objections to the particulars were largely technical, pedantic, unnecessary and disproportionate in a small defamation claim, and their pursuit of a prolonged personal costs application against the defendants' solicitors was wholly out of proportion to the issues and had...

Court Disposition

The defendants obtained an order that the plaintiffs pay the defendants' costs of the discontinued defamation proceedings and the costs applications on an indemnity basis.

Orders

  • ["The plaintiffs are to pay the costs of the defendants for the proceedings 2019/00045573 to the date of discontinuance and in relation to the parties' applications in relation to costs, such costs to be paid on an indemnity basis."]