FEDERAL COURT OF AUSTRALIA
Colagrande v Kim (No 2) [2022] FCA 659
File number(s): NSD 587 of 2021 Judgment of: JAGOT J Date of judgment: 7 June 2022 Catchwords: COSTS — application for indemnity costs due to respondents’ unmeritorious denials in face of overwhelming contrary evidence and failure to accept settlement offers — where no basis for indemnity costs under general law but s 40 of Defamation Act 2005 (NSW) applies — where respondents unreasonably failed to make settlement offer and no foundation for interests of justice requiring otherwise than indemnity costs under s 40(2) — indemnity costs ordered Legislation: Defamation Act 2005 (NSW) ss 3(d), 13, 17, 18, 40, 40(2)(a), 40(3)
Federal Court Rules 2011 (Cth)
Cases cited: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246; (2021) 151 ACSR 26
Colagrande v Kim [2022] FCA 409.
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Hayson v The Age Company Pty Ltd (No 3) [2020] FCA 1163; (2020) 280 FCR 139
Vector Corrosion Technologies Limited v E-Chem Technologies Ltd [2022] FCA 519
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 38 Date of last submissions: 20 May 2022 Date of hearing: Determined on the papers Counsel for the Applicant: Ms S Chrysanthou SC and Mr H Elachkar Solicitor for the Applicant: Fraser Lawyers Counsel for the Respondents: Mr N Olson Solicitor for the Respondents: Company Giles Pty Ltd ORDERS
NSD 587 of 2021 BETWEEN: CESIDIO COLAGRANDE
Applicant
AND: MIN SIK KIM
First Respondent
ANNA MIN
Second Respondent
ORDER MADE BY:
JAGOT J
DATE OF ORDER:
7 JUNE 2022
THE COURT ORDERS THAT:
1.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”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
The remaining issue in this matter is costs.
On 21 April 2022 I made orders which included that: (a) the respondents pay the applicant damages for non-economic loss, including aggravated damages, assessed in the amount of $420,000, (b) the respondents pay the applicant special damages assessed in the amount of $31,511.29, and (c) the respondents and each of them be permanently restrained from publishing or re-publishing the False Review as defined in paragraph 4 of the statement of claim or any matter to the same or a similar effect as the False Review. I also made an order that the respondents pay the applicant’s costs as agreed or taxed. I gave the parties liberty to apply within seven days to vary this costs order. The applicant, Dr Colagrande, has applied to vary the costs order by seeking indemnity costs for the whole of the proceeding or, alternatively, from 19 February 2022 on the basis of an offer…
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- AGLC
- Colagrande v Kim (No 2) [2022] FCA 659
- Case
- [2022] FCA 659
- Decision Date
CaseChat Overview and Summary
The court examined the general law principles and concluded that there was no basis for awarding indemnity costs under those principles. However, it found that section 40 of the Defamation Act 2005 (NSW) applied, as the respondents unreasonably failed to make a settlement offer and there was no foundation for the interests of justice requiring anything other than indemnity costs under section 40(2). The court noted the unmeritorious nature of the respondents' denials and their unreasonable conduct in rejecting settlement offers, leading to the conclusion that an indemnity costs order was appropriate.
The court varied Order 5 of the Court’s orders dated 21 April 2022 by deleting the words “as agreed or taxed” and replacing them with the words “on an indemnity basis”. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011. The court's ruling ensured that the applicant would be compensated for the costs incurred due to the respondents' unreasonable actions and unmeritorious denials.
Orders
Orders of the court
1. 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”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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