Vass v Nationwide News Pty Ltd: 2020/112959 (No 2) [2022] NSWSC 256

Vass v Nationwide News Pty Ltd: 2020/112959 (No 2) [2022] NSWSC 256

Indemnity costs for the whole proceedings were not justified merely by the plaintiff's false defamation claim because these Equity proceedings included an arguable contractual damages claim to which falsity of the imputations was not a complete answer. However, by the time of the defendant's 19 February 2021 Calderbank offer, the determinative issue was the falsity of the plaintiff's claim, the plaintiff must have known his case was false, and there was no evidence he intended to take the reliance point. His failure to accept the offer within a reasonable period of 14 days was unreasonable, justifying indemnity costs from 5 March 2021.

Jurisdiction
Australia
Judgment Date
03 March 2022
Procedural Posture
Costs Application in Equity Proceedings Arising From Defamation Settlement Enforcement and Cross Claim for Rescission for Fraud / Application by Defendant to Vary Costs Order to Provide for Indemnity Costs
Outcome
Application allowed in part; indemnity costs awarded from 5 March 2021 only.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'false Defamation Claim' 'specific Performance' 'rescission for Fraud' 'unclean Hands']
['costs' 'defamation' 'equity' 'contract'] ['indemnity Costs' 'calderbank Offer' 'false Defamation Claim' 'specific Performance' 'rescission for Fraud' 'unclean Hands']

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Procedural Posture

Costs Application in Equity Proceedings Arising From Defamation Settlement Enforcement and Cross Claim for Rescission for Fraud / Application by Defendant to Vary Costs Order to Provide for Indemnity Costs

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendant's costs of the proceedings on an indemnity basis because the plaintiff's underlying defamation claim was false and known to be false." "Whether the plaintiff's failure to accept the defendant's informal offer of compromise made on 19 February 2021 was unreasonable so as to justify indemnity costs from a later date." "Whether the plaintiff's Equity proceedings were sufficiently separate from the false defamation claim to preclude indemnity costs for the whole proceedings."]

Ratio Decidendi

Indemnity costs for the whole proceedings were not justified merely by the plaintiff's false defamation claim because these Equity proceedings included an arguable contractual damages claim to which falsity of the imputations was not a complete answer. However, by the time of the defendant's 19 February 2021 Calderbank offer, the determinative issue was the falsity of the plaintiff's claim, the plaintiff must have known his case was false, and there was no evidence he intended to take the reliance point. His failure to accept the offer within a reasonable period of 14 days was unreasonable, justifying indemnity costs from 5 March 2021.

Court Disposition

Application allowed in part; indemnity costs awarded from 5 March 2021 only.

Orders

  • ["Order that Order 2 made on 23 December 2021 be varied such that the plaintiff is to pay the defendant's costs of the proceedings including the cross-claim up to 5 March 2021, and thereafter on an indemnity basis."]