Cha v Oh (No. 23) [2009] NSWDC 336

Cha v Oh (No. 23) [2009] NSWDC 336

Due to serious failures by the second defendant in timely and adequate particularisation of justification, and admitted prolixity in cross-examination, as well as late amendments, the court exercises discretion under s 48A Defamation Act 1974 (NSW) to award indemnity costs for parts of the trial exceeding original estimates, but not for delays attributable to plaintiff’s legal counsel in 2008. Interest is awarded at an agreed 3% rate, and a partial stay granted on compliance with certain steps.

Parties
Plaintiff / First Cross Defendant: Bob Chae-Sang Cha; First Defendant: Jik Il Oh; Second Defendant: Jae Kyung Lee; Third Defendant: Yoon Shin Lee; Fourth Defendant: Hak Joo Park; Fifth Defendant: Han Yong Lee; Sixth Defendant: Duk In Kim; Seventh Defendant: Hak Soo Cho; Second Cross Defendant: Chung Yup Kim
Jurisdiction
Australia
Judgment Date
14 December 2009
Procedural Posture
Civil / Post Trial, Costs and Stay Applications
Outcome
Judgment for plaintiff; partial indemnity costs order; partial stay of proceedings pending compliance.
Legal Topics
Defamation, Interest on Judgment, Costs, Stay Pending Appeal
Tort Defamation Interest on Judgment Costs Stay Pending Appeal

Case Brief

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Parties

Bob Chae-Sang Cha

Plaintiff / First Cross Defendant

Jik Il Oh

First Defendant

Jae Kyung Lee

Second Defendant

Yoon Shin Lee

Third Defendant

Hak Joo Park

Fourth Defendant

Han Yong Lee

Fifth Defendant

Duk In Kim

Sixth Defendant

Hak Soo Cho

Seventh Defendant

Chung Yup Kim

Second Cross Defendant

Procedural Posture

Civil / Post Trial, Costs and Stay Applications

Legal Issues

  1. 1 Entitlement to interest on judgment in defamation
  2. 2 Awarding indemnity costs under s 48A Defamation Act 1974 (NSW)
  3. 3 Adequacy and timing of particulars in justification

Ratio Decidendi

Due to serious failures by the second defendant in timely and adequate particularisation of justification, and admitted prolixity in cross-examination, as well as late amendments, the court exercises discretion under s 48A Defamation Act 1974 (NSW) to award indemnity costs for parts of the trial exceeding original estimates, but not for delays attributable to plaintiff’s legal counsel in 2008. Interest is awarded at an agreed 3% rate, and a partial stay granted on compliance with certain steps.

Court Disposition

Judgment for plaintiff; partial indemnity costs order; partial stay of proceedings pending compliance.

Orders

  • Vary previous order: total judgment for plaintiff of $303,834.09 against each of the second, fourth and fifth defendants for each of the listed publications.
  • Interest at 3% applied to judgment sums as per schedule.