Chow v Un (No. 2) - [2017] NSWDC 301

District Court

New South Wales

Medium Neutral Citation: Chow v Un (No. 2) [2017] NSWDC 301
Hearing dates: 2 November 2017
Date of orders: 02 November 2017
Decision date: 02 November 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
As between the first plaintiff and the defendant:
(1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $10,587.95.
(2) Judgment for the first plaintiff in the sum of $105,587.95.
(3) Judgment in the amount referred to in order (2) be as and from 15 September 2017.
(4) The defendant to pay the first plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.
As between the second plaintiff and the defendant:
(1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $7,244.38.
(2) Judgment for the first plaintiff in the sum of $72,244.38.
(3) Judgment in the amount referred to in order (2) be as and from 15 September 2017.
(4) The defendant to pay the second plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.
Catchwords: TORT – defamation – application for interest at 3% on judgment sum – application for indemnity costs for the proceedings – no issue of principle
Legislation Cited: Defamation Act 2005 (NSW), ss 3 and 40
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Chow v Un [2017] NSWDC 254
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Habib v Radio 2UE Sydney Pty Ltd (No 4) [2012] NSWDC 12
Category: Costs
Parties: First Plaintiff: Sum Chow
Second Plaintiff: Colin Chiu Kwan Chau
Defendant: Chi Keong Un
Representation:
Counsel:
Plaintiffs: Mr R Rasmussen
Defendant:
Solicitors:
Plaintiffs: Pancific Legal
Defendant:

File Number(s): 2014/362714
Publication restriction: None

Judgment

Introduction

These are proceedings for defamation. On 15 September 2017 I delivered judgment in these proceedings (Chow v Un [2017] NSWDC 254) and made the following orders:

Judgment for the first plaintiff for $95,000.

Judgment for the second plaintiff for $65,000.

Costs reserved, with liberty to apply concerning interest and costs.

Exhibits retained for 28 days.

In accordance with order (3), the plaintiffs now seek costs and interest. On 26 October 2017, appearing ex parte in the Defamation List, Mr Rasmussen informed the court that the legal representatives for the defendant has ceased acting on or about 6 October 2017. He sought orders for the relisting of the costs and interest issue. The following orders were made on 26 October 2017:

The plaintiffs’ application for interest and indemnity costs is stood over for argument to Thursday 2 November 2017 at 9:00am in Court 13D, John Maddison Tower, 86 Goulburn Street, Sydney before Gibson DCJ.

The plaintiffs are to notify the defendant by email and by registered post by 5:00pm today that if the defendant does not attend court to argue his case orders will be made in his absence.

A copy…

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.

Continue reading Chow v Un (No. 2)

Details

AGLC: Chow v Un (No. 2) [2017] NSWDC 301
Case: [2017] NSWDC 301
Decision Date: 02 November 2017

CaseChat Overview and Summary

In the matter of Chow v Un (No. 2), the plaintiffs, Chow and Un, sought to enforce a previous judgment against the defendant in relation to defamation. The court was asked to determine the rate of interest applicable on the judgment sum, and whether the defendant should bear the plaintiffs’ costs on an indemnity basis. The Federal Circuit and Family Court of Australia was the court that handled this case.

The legal issues before the court were the appropriate rate of pre-judgment interest on the judgment sum, and whether the plaintiffs were entitled to indemnity costs for the proceedings. The court had to decide on the rate of interest to be applied on the judgment sum from a specific date until the date of the current judgment, and whether the defendant should pay the plaintiffs’ costs on an indemnity basis. There was no issue of principle involved in these determinations.

The court ruled that pre-judgment interest should apply at the rate of 3% from 29 December 2013 to 15 September 2017. The court also determined that the defendant should pay the plaintiffs’ legal costs and disbursements of the entire proceedings upon the indemnity basis. The court awarded the first plaintiff a judgment in the sum of $105,587.95, and the second plaintiff a judgment in the sum of $72,244.38. The court's decision was based on the principle of indemnity costs and the applicable rate of interest as determined by law.

Orders

Orders of the court

As between the first plaintiff and the defendant:

(1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $10,587.95.

(2) Judgment for the first plaintiff in the sum of $105,587.95.

(3) Judgment in the amount referred to in order (2) be as and from 15 September 2017.

(4) The defendant to pay the first plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.

As between the second plaintiff and the defendant:

(1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $7,244.38.

(2) Judgment for the first plaintiff in the sum of $72,244.38.

(3) Judgment in the amount referred to in order (2) be as and from 15 September 2017.

(4) The defendant to pay the second plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Chow v Un (No. 2) [2017] NSWDC 301
Hearing dates:	2 November 2017
Date of orders:	02 November 2017
Decision date:	02 November 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	As between the first plaintiff and the defendant: (1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $10,587.95. (2) Judgment for the first plaintiff in the sum of $105,587.95. (3) Judgment in the amount referred to in order (2) be as and from 15 September 2017. (4) The defendant to pay the first plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis. As between the second plaintiff and the defendant: (1) Pre-judgment interest is to apply at the rate of 3% from 29 December 2013 to 15 September 2017 in the amount of $7,244.38. (2) Judgment for the first plaintiff in the sum of $72,244.38. (3) Judgment in the amount referred to in order (2) be as and from 15 September 2017. (4) The defendant to pay the second plaintiff’s legal costs and disbursements of the entire proceedings upon the indemnity basis.
Catchwords:	TORT – defamation – application for interest at 3% on judgment sum – application for indemnity costs for the proceedings – no issue of principle
Legislation Cited:	Defamation Act 2005 (NSW), ss 3 and 40 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Chow v Un [2017] NSWDC 254 Davis v Nationwide News Pty Ltd [2008] NSWSC 946 Habib v Radio 2UE Sydney Pty Ltd (No 4) [2012] NSWDC 12
Category:	Costs
Parties:	First Plaintiff: Sum Chow Second Plaintiff: Colin Chiu Kwan Chau Defendant: Chi Keong Un
Representation:	Counsel: Plaintiffs: Mr R Rasmussen Defendant: Solicitors: Plaintiffs: Pancific Legal Defendant:
File Number(s):	2014/362714
Publication restriction:	None