Haddon v Forsyth (No 2) [2011] NSWSC 693

Haddon v Forsyth (No 2) [2011] NSWSC 693

The plaintiff's failure to accept the defendants' settlement offers was not shown to be unreasonable for the purposes of s 40(2)(b) of the Defamation Act 2005, so indemnity costs for the whole proceedings were not ordered under that provision. However, the defendants' 5 November 2009 offer, which included a $20,000 contribution to the plaintiff's legal costs, was a genuine compromise and produced an entitlement under UCPR 42.15A to indemnity costs from the beginning of the day after the offer was made. The plaintiff was therefore ordered to pay ordinary costs up to 6 November 2009 and indemnity costs thereafter.

Jurisdiction
Australia
Judgment Date
08 July 2011
Procedural Posture
Defamation Proceedings; Costs Application / Costs Determination After Verdict for Defendants
Outcome
Plaintiff ordered to pay defendants' costs on the ordinary basis up to 6 November 2009 and on an indemnity basis thereafter.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'settlement Offers' 'unreasonable Failure to Accept Settlement Offer' 'misuse of Superior Financial Position']
['defamation' 'civil Procedure' 'costs'] ['indemnity Costs' 'offers of Compromise' 'settlement Offers' 'unreasonable Failure to Accept Settlement Offer' 'misuse of Superior Financial Position']

Case Brief

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Procedural Posture

Defamation Proceedings; Costs Application / Costs Determination After Verdict for Defendants

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendants' costs on an indemnity basis under s 40(2)(b) of the Defamation Act 2005 because he unreasonably failed to accept a settlement offer made by the defendants." 'Whether pre-commencement settlement negotiations were relevant to the costs determination.' 'Whether the defendants misused a superior financial position to hinder early resolution of the proceedings.' 'Whether UCPR 42.15A entitled the defendants to indemnity costs from after an offer of compromise.']

Ratio Decidendi

The plaintiff's failure to accept the defendants' settlement offers was not shown to be unreasonable for the purposes of s 40(2)(b) of the Defamation Act 2005, so indemnity costs for the whole proceedings were not ordered under that provision. However, the defendants' 5 November 2009 offer, which included a $20,000 contribution to the plaintiff's legal costs, was a genuine compromise and produced an entitlement under UCPR 42.15A to indemnity costs from the beginning of the day after the offer was made. The plaintiff was therefore ordered to pay ordinary costs up to 6 November 2009 and indemnity costs thereafter.

Court Disposition

Plaintiff ordered to pay defendants' costs on the ordinary basis up to 6 November 2009 and on an indemnity basis thereafter.

Orders

  • ["The plaintiff pay the defendants' costs assessed on the ordinary basis up to 6 November 2009, and thereafter on an indemnity basis."]