Colagrande v Kim (No 2)

Case [2022] FCA 659

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

Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2

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:

  1. The remaining issue in this matter is costs.

  2. 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

Colagrande v Kim (No 2) involved a dispute between the applicant, Mr Colagrande, and the respondents, Mr and Mrs Kim, concerning defamation claims. The case was heard in the Federal Court of Australia. The primary legal issue was whether the respondents' refusal to accept settlement offers and their denial of the applicant's claims, despite overwhelming evidence to the contrary, justified an award of indemnity costs. The court had to determine whether the general law principles permitted such an award and if section 40 of the Defamation Act 2005 (NSW) provided an alternative basis for indemnity costs.

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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