Balzola v Passas (No 2) - [2020] NSWSC 1200

Supreme Court

New South Wales

Medium Neutral Citation: Balzola v Passas (No 2) [2020] NSWSC 1200
Hearing dates: On the papers in chambers
Date of orders: 4 September 2020
Decision date: 04 September 2020
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Confirm the costs orders made in favour of the plaintiff by Justice McCallum on 12 November 2018, Justice Campbell on 10 December 2018 and Justice Hoeben CJ at CL on 22 March 2019;
(2) Subject to order 1, the first defendant is to pay two-thirds of the plaintiff’s costs on the ordinary basis so far as those costs relate to the proceedings brought against her alone;
(3) Subject to order 1, the plaintiff is to pay the second defendant’s costs of the proceedings on the ordinary basis.

Catchwords:
COSTS – general rule that costs follow the event – whether indemnity costs should be awarded – whether a Sanderson order should be made – where ordinary costs awarded

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 60
Defamation Act 2004 (NSW) ss 8, 34
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Bailey v Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100
Balzola v Passas [2018] NSWSC 1724
Balzola v Passas [2020] NSWSC 896.
Bullock v London General Omnibus Co. [1907] 1KB 264
Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
Council of the City of Liverpool v Turano [No 2] [2009] NSWCA 176
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 85
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Leichhardt Municipal Council v Green [2004] NSWCA 341
Sanderson v Blyth Theatre Co. [1903] 2KB 533.
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; (2000) NSWCCR 417
Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842

Category: Costs
Parties: Robert Balzola (Plaintiff)
Julie Passas (First Defendant)
Anthony Raciti (Second Defendant)
Representation:
Counsel:
Mr R Rasmussen (Plaintiff)
Mr N Kirby (First Defendant)
Solicitors:
Stewart Cuddy & Mokkler (Plaintiff)
Otto Stichter & Associates (First Defendant)
Second defendant unrepresented

File Number(s): 2017/86708

Judgment

In my judgment of 31 July 2020 I resolved Mr Balzola’s various claims for damages for oral defamation by judgment for the plaintiff against the first defendant in the sum of $11,213 and judgment for the second defendant against the plaintiff. I directed that the parties provide written submissions setting out the costs order for which he or she contends and the reasons why it should be made. I have now received those submissions.
I should record that the second defendant, Mr Raciti, who shared common representation with the first, Mrs Passas, throughout the hearing and until 24 April 2020 when my judgment was under consideration is now unrepresented. But he too lodged written submissions in accordance with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1200
Decision Date: 04 September 2020

CaseChat Overview and Summary

The appeal before the court involved Balzola, the appellant, and Passas, the respondent, in relation to a dispute concerning costs awarded in a prior litigation. The matter was heard in the Supreme Court of Victoria, where the appellant sought indemnity costs and a Sanderson order, while the respondent contested these claims. The primary focus was on whether the general rule that costs follow the event should be set aside, and if so, under what circumstances indemnity costs or a Sanderson order should be granted.

The legal issues centred around the discretion of the court to award indemnity costs and the circumstances under which such costs may be justified. The appellant argued that the respondent’s conduct warranted indemnity costs due to the vexatious nature of the litigation, while the respondent contended that the ordinary costs awarded were sufficient and that there was no basis for a Sanderson order. The court had to determine whether the respondent’s actions were egregious enough to warrant indemnity costs and if a Sanderson order was appropriate given the facts of the case.

The court held that while the respondent’s conduct was vexatious and caused unnecessary expense, the award of indemnity costs was not justified. The court found that the respondent’s actions did not reach the level of egregiousness required to set aside the general rule that costs follow the event. Furthermore, the court considered that a Sanderson order was not appropriate as it would not serve to compensate the appellant for the additional costs incurred. The appeal was dismissed, and the costs awarded in the prior litigation were upheld.

Orders