Kelly v Davis (No.2) [2022] NSWDC 376

Kelly v Davis (No.2) [2022] NSWDC 376

The plaintiff, having failed in his claims against both defendants and having advanced no reason to depart from the usual rule, must pay their costs. The first defendant was not entitled to indemnity costs from the 13 August 2021 offer because the offer preceded the defence, matched the damages the plaintiff might have recovered if successful, and did not explain why it should be accepted. The first defendant was entitled to indemnity costs after 30 March 2022 because by then the plaintiff had been alerted to the weaknesses in his case, including identification, the defence had been filed, and the $20,000 offer was generous, making rejection unreasonable. The third defendant was not...

Jurisdiction
Australia
Judgment Date
29 August 2022
Procedural Posture
Civil Costs Determination Following Unsuccessful Defamation Suit / On the Papers After Costs Were Reserved
Outcome
The plaintiff was ordered to pay the first defendant's costs on the ordinary basis up to 30 March 2022 and on an indemnity basis thereafter, and to pay the third defendant's costs as agreed or assessed. The third defendant's application for a partial indemnity costs order was refused.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'party and Party Costs' 'costs Following the Event' 'self Represented Litigant']
['civil Procedure' 'costs' 'defamation'] ['calderbank Offers' 'indemnity Costs' 'party and Party Costs' 'costs Following the Event' 'self Represented Litigant']

Case Brief

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Procedural Posture

Civil Costs Determination Following Unsuccessful Defamation Suit / On the Papers After Costs Were Reserved

Legal Issues

  1. 1 ["Whether the plaintiff should pay the first and third defendants' costs after his unsuccessful defamation claims." 'Whether the first defendant should receive indemnity costs after the plaintiff rejected Calderbank offers dated 13 August 2021 and 30 March 2022.' 'Whether the third defendant should receive indemnity costs after the plaintiff rejected a late walk-away offer sent on 3 August 2022.']

Ratio Decidendi

The plaintiff, having failed in his claims against both defendants and having advanced no reason to depart from the usual rule, must pay their costs. The first defendant was not entitled to indemnity costs from the 13 August 2021 offer because the offer preceded the defence, matched the damages the plaintiff might have recovered if successful, and did not explain why it should be accepted. The first defendant was entitled to indemnity costs after 30 March 2022 because by then the plaintiff had been alerted to the weaknesses in his case, including identification, the defence had been filed, and the $20,000 offer was generous, making rejection unreasonable. The third defendant was not...

Court Disposition

The plaintiff was ordered to pay the first defendant's costs on the ordinary basis up to 30 March 2022 and on an indemnity basis thereafter, and to pay the third defendant's costs as agreed or assessed. The third defendant's application for a partial indemnity costs order was refused.

Orders

  • ["The plaintiff is to pay the first defendant's costs, as agreed or assessed, on the ordinary basis up to 30 March 2022." "The plaintiff is to pay the first defendant's costs, as agreed or assessed, on an indemnity basis thereafter." "The plaintiff is to pay the third defendant's costs, as agreed or assessed."]