Colagrande v Kim (No 2) [2022] FCA 659

Colagrande v Kim (No 2) [2022] FCA 659

Although the respondents' conduct included unreasonable denials and an unmeritorious mitigation plea, general law principles did not justify indemnity costs because the additional costs were not shown to be material and some consequences had already been compensated in damages. However, s 40(2)(a) of the Defamation Act 2005 (NSW) was satisfied: the applicant successfully brought defamation proceedings, costs were to be awarded to him, the respondents' offers were not reasonable settlement offers, the respondents unreasonably failed to make a reasonable settlement offer, and they also unreasonably failed to agree to the applicant's reasonable settlement offers. There was no foundation for...

Jurisdiction
Australia
Judgment Date
07 June 2022
Procedural Posture
Defamation Proceeding; Costs Application / Post Judgment Application to Vary Costs Order, Determined on the Papers
Outcome
Application to vary the costs order allowed; indemnity costs ordered under s 40 of the Defamation Act 2005 (NSW).
Legal Topics
['indemnity Costs' 'settlement Offers' 'offers of Compromise' 'defamation Act 2005 (nsw) S 40' 'unreasonable Failure to Make or Accept Settlement Offer']
['defamation' 'costs'] ['indemnity Costs' 'settlement Offers' 'offers of Compromise' 'defamation Act 2005 (nsw) S 40' 'unreasonable Failure to Make or Accept Settlement Offer']

Case Brief

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Procedural Posture

Defamation Proceeding; Costs Application / Post Judgment Application to Vary Costs Order, Determined on the Papers

Legal Issues

  1. 1 ["Whether the respondents' conduct justified indemnity costs under general law principles." 'Whether s 40(2)(a) of the Defamation Act 2005 (NSW) required indemnity costs because the respondents unreasonably failed to make a settlement offer or agree to settlement offers proposed by the applicant.' 'Whether the interests of justice required an order other than indemnity costs.']

Ratio Decidendi

Although the respondents' conduct included unreasonable denials and an unmeritorious mitigation plea, general law principles did not justify indemnity costs because the additional costs were not shown to be material and some consequences had already been compensated in damages. However, s 40(2)(a) of the Defamation Act 2005 (NSW) was satisfied: the applicant successfully brought defamation proceedings, costs were to be awarded to him, the respondents' offers were not reasonable settlement offers, the respondents unreasonably failed to make a reasonable settlement offer, and they also unreasonably failed to agree to the applicant's reasonable settlement offers. There was no foundation for...

Court Disposition

Application to vary the costs order allowed; indemnity costs ordered under s 40 of the Defamation Act 2005 (NSW).

Orders

  • ['Order 5 of the Court\'s orders dated 21 April 2022 be varied by deleting the words "as agreed or taxed" and replacing them with the words "on an indemnity basis".']