Larach v Urriola (No. 2) [2009] NSWDC 142

Larach v Urriola (No. 2) [2009] NSWDC 142

The defendants' walk-away offers were made very late, during or after an expensive trial, in proceedings where damages were always likely to be modest compared with costs, and after the defendants had made no response to the concerns notices or offer of compromise. The offers were too late and were not true compromises. The defendants therefore unreasonably failed to make or agree to a settlement offer within s 40(2)(a), so the plaintiffs were entitled to indemnity costs.

Jurisdiction
Australia
Judgment Date
19 June 2009
Procedural Posture
Civil Defamation Proceedings / Post Judgment Determination of Interest and Costs Pursuant to Liberty to Restore
Outcome
Plaintiffs' application for indemnity costs granted; interest and reserved costs orders varied by consent.
Legal Topics
['indemnity Costs in Defamation Proceedings' 'settlement Offers' 'walk Away Offers' 'interest on Judgment']
['tort' 'defamation' 'costs'] ['indemnity Costs in Defamation Proceedings' 'settlement Offers' 'walk Away Offers' 'interest on Judgment']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Post Judgment Determination of Interest and Costs Pursuant to Liberty to Restore

Legal Issues

  1. 1 ['Whether the plaintiffs should receive costs on a party/party basis or an indemnity basis under s 40 of the Defamation Act 2005 (NSW).' "Whether the defendants' late walk-away offers were settlement offers or reasonable offers for the purposes of s 40." 'Whether the defendants unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiffs.']

Ratio Decidendi

The defendants' walk-away offers were made very late, during or after an expensive trial, in proceedings where damages were always likely to be modest compared with costs, and after the defendants had made no response to the concerns notices or offer of compromise. The offers were too late and were not true compromises. The defendants therefore unreasonably failed to make or agree to a settlement offer within s 40(2)(a), so the plaintiffs were entitled to indemnity costs.

Court Disposition

Plaintiffs' application for indemnity costs granted; interest and reserved costs orders varied by consent.

Orders

  • ['Vary order 1 of the Judgment of 22 May 2009 to include interest in the sum of $739.74, making a total of $10,739.74 up to and including 22 May 2009 together with a daily interest rate of $2.65 thereafter.' 'Vary order 2 of the Judgment of 22 May 2009 to include interest in the sum of $369.05, making a total of...