Corby v Allen and Unwin Pty Limited (No 3)

[2013] NSWSC 631

Supreme Court

New South Wales

Medium Neutral Citation:

Corby v Allen & Unwin Pty Limited (No 3) [2013] NSWSC 631

Hearing dates:

23 May 2013

Decision date:

23 May 2013

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) In respect of proceedings brought by Michael Corby Jnr, 348219 of 2012:

(a) dismiss the proceedings; and

(b) order the plaintiff to pay:

(i) 25 per cent of the defendants' costs of the two day hearing on 27 and 28 March 2013; and

(ii) all of the defendants' costs of the hearing on 17 May 2013; and

(iii) the defendants' costs of the proceedings other than included in (a) and (b).

(2) In respect of the proceedings brought by Rosleigh Corby, 348204 of 2012, order that 37½% of the costs of the hearing on 27 and 28 March 2013, being the costs referable to those proceedings, be costs in the cause.

(3). In respect of the proceedings brought by Mercedes Corby, 340887 of 2012, order that 37½% of the costs of the hearing of 27 and 28 March 2013, being the costs referable to those proceedings, be costs in the cause.

Catchwords:

COSTS - applications to strike out imputations

Cases Cited:

Corby v Allen & Unwin Pty Limited [2013] NSWSC 308
Corby v Allen & Unwin Pty Limited [2013] NSWSC 617

Category:

Procedural and other rulings

Parties:

Mercedes Pearl Corby (Plaintiff)
Michael Corby Jnr (Plaintiff)
Allen & Unwin Pty Ltd (First Defendant)
Eamonn Duff (Second Defendant)

Representation:

Counsel:
S Chrysanthou (Plaintiff)
ATS Dawson (Defendants)
Solicitors
Kalantzis Lawyers (Plaintiff)
Banki Haddock Fiora (Defendants):

File Number(s):

2012/340887; 2012/348219

Publication restriction:

Nil

Judgment

1. I am to determine the appropriate costs orders in relation to the hearing before me on 27 and 28 March 2013 and the second hearing on 17 May 2013.

1. The hearing on 27 and 28 March 2013 occupied the full two days and concerned a challenge by the defendants to each and every one of the imputations alleged to have been carried in the matter complained of in the three proceedings brought respectively by Mercedes, Rosleigh and Michael Corby Jnr.

1. The hearing on 17 May 2013 concerned the defendants' challenges to two imputations: one in respect of Mercedes and the second in respect of Michael Jnr.

1. Each party had a measure of success in the proceedings heard on 27 and 28 March 2013: Corby v Allen & Unwin Pty Limited [2013] NSWSC 308. The defendants' success largely related to imputations alleged to have been carried that concerned the involvement by each of the three members of the Corby family with drugs. I did not find any of those imputations to be carried in respect of any of these proceedings. Argument on this issue took a substantial proportion of the two-day hearing.

1. The defendants were wholly successful in striking out the two imputations on 17 May 2013: Corby v Allen & Unwin Pty Limited [2013] NSWSC 617.

1. Mr Dawson, who appears on behalf of the defendants, proposed an order that Michael Corby Jnr pay 25 per cent of the costs of the two days in March 2013 and that Michael Corby Jnr and Mercedes each pay 50% of the costs of the hearing on 17 May 2013.

1. He submitted in respect of 27 and 28 March 2013 that I ought order that the costs be the defendants' costs in the cause. In other words if the defendants are successful in both the proceedings brought by Mercedes and those brought by Rosleigh they will recover 75% of the costs of those two days from these two plaintiffs. If the defendants succeed against one or other of those two plaintiffs they will recover 37½% of the costs of that two-day hearing. If the defendants succeed in neither, they will not recover their costs of the March 2013 hearing.

1. Ms Chrysanthou did not resist an order that Michael Corby Jnr pay 25 per cent of the costs on the hearing on 27 and 28 March 2013. She also submitted that it would be simpler if Michael Corby Jnr were ordered to pay the costs of the 17 May 2013 hearing, rather than to split those costs equally between Mercedes and Michael Corby Jnr.

1. Mr Dawson accepted that Ms Chrysanthou's suggestion, in relation to the hearing on 17 May 2013, was an appropriate one.

1. In respect of the hearing on 27 and 28 March 2013 Ms Chrysanthou submitted that Mr Dawson's proposal failed to take into account the substantial success which the plaintiffs enjoyed in defending the imputations not relating to drugs and proposed that the costs of 27 and 28 March be respectively the costs in the cause in each of the proceedings brought by Rosleigh Corby and Mercedes Corby.

1. In all the circumstances I am persuaded by Ms Chrysanthou's submissions in relation to the hearing on 27 and 28 March 2013.

Orders

1. I make the following orders:

(1) In respect of proceedings brought by Michael Corby Jnr, 348219 of 2012:

(a) dismiss the proceedings; and

(b) order the plaintiff to pay:

(i) 25 per cent of the defendants' costs of the two day hearing on 27 and 28 March 2013; and

(ii) all of the defendants' costs of the hearing on 17 May 2013; and

(iii) the defendants' costs of the proceedings other than included in (a) and (b)

(2) In respect of the proceedings brought by Rosleigh Corby, 348204 of 2012, order that 37½% of the costs of the hearing on 27 and 28 March 2013, being the costs referable to those proceedings, be costs in the cause.

(3). In respect of the proceedings brought by Mercedes Corby, 340887 of 2012, order that 37½% of the costs of the hearing of 27 and 28 March 2013, being the costs referable to those proceedings, be costs in the cause.

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Decision last updated: 23 May 2013