Novakovich v Waterhouse [2007] NSWDC 231

Novakovich v Waterhouse [2007] NSWDC 231

The plaintiff had discontinued the defamation proceedings and the usual course was that the plaintiff pay the defendant's costs, but the plaintiff's conduct did not involve any disentitling factor, iniquity, injustice or delinquency sufficient to justify indemnity costs. The Calderbank offer did not warrant indemnity costs because the court had not been addressed on it and could not assess whether the $15,000 costs estimate was reasonable. The appropriate order was therefore party/party costs, including the costs of the day's argument because they were an indistinguishable part of the litigation.

Jurisdiction
Australia
Judgment Date
19 October 2007
Procedural Posture
Civil Defamation Proceedings / Application on Discontinuance and Costs
Outcome
Leave to discontinue granted; plaintiff ordered to pay the defendant's costs on a party/party basis, including the costs of the costs argument.
Legal Topics
['discontinuance' 'party/party Costs' 'indemnity Costs' 'calderbank Offer' 's 7 a Jury Trial']
['tort' 'defamation' 'civil Procedure' 'costs'] ['discontinuance' 'party/party Costs' 'indemnity Costs' 'calderbank Offer' 's 7 a Jury Trial']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Application on Discontinuance and Costs

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file a Notice of Discontinuance in court.' "Whether the plaintiff should pay the defendant's costs on a party/party basis or on an indemnity basis after discontinuance." "Whether the plaintiff's conduct in commencing and discontinuing the defamation proceedings warranted indemnity costs."]

Ratio Decidendi

The plaintiff had discontinued the defamation proceedings and the usual course was that the plaintiff pay the defendant's costs, but the plaintiff's conduct did not involve any disentitling factor, iniquity, injustice or delinquency sufficient to justify indemnity costs. The Calderbank offer did not warrant indemnity costs because the court had not been addressed on it and could not assess whether the $15,000 costs estimate was reasonable. The appropriate order was therefore party/party costs, including the costs of the day's argument because they were an indistinguishable part of the litigation.

Court Disposition

Leave to discontinue granted; plaintiff ordered to pay the defendant's costs on a party/party basis, including the costs of the costs argument.

Orders

  • ['Grant leave to the plaintiff to file a Notice of Discontinuance in court.' "The plaintiff pay the defendant's costs on a party/party basis, including the defendant's costs of today and in relation to this argument."]