Cosmos Management Gold Coast Pty Ltd v Katrina Gorrie
[2021] NSWSC 705
•17 June 2021
Supreme Court
New South Wales
Medium Neutral Citation: Cosmos Management Gold Coast Pty Ltd & Ors v Katrina Gorrie [2021] NSWSC 705 Hearing dates: On the papers Decision date: 17 June 2021 Jurisdiction: Common Law Before: Sackar J Decision: See para [18]
Catchwords: COSTS — Party/Party — General rule that costs follow the event
Cases Cited: Re Minister For Immigration and Ethnic Affairs (1997) 186 CLR 622
Category: Costs Parties: Cosmos Management Gold Coast Pty Ltd (1st plaintiff)
Cosmos Cosmetic Medicine Pty Ltd (2nd plaintiff)
Cosmos Cosmetic Day Surgery Pty Ltd (3rd plaintiff)
JRG Melbourne Management Pty Ltd (4th plaintiff)
JRG Day Surgery Pty Ltd (5th plaintiff)
JC Canberra Management Pty Ltd (6th plaintiff)
EGJ Management Pty Ltd (7th plaintiff)
Katrina Gorrie (first defendant)Representation: Counsel:
Solicitors:
Rebekah Giles, Company Giles (plaintiffs)
Stone Group Lawyers (defendant)
File Number(s): 2021/59528
Judgment
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On 17 March 2021 by consent the Court ordered final injunctions in terms set out in the plaintiffs’ Summons dated 2 March 2021. The only outstanding issue was costs which the parties were content for me to deal with on the papers.
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The plaintiffs perform cosmetic surgery and the defendant was a patient who wished to have some surgery performed upon her. The plaintiffs ultimately decided against performing any surgery which provoked a claim by the defendant for compensation from them and in addition is alleged to have made statements of and concerning the plaintiffs which were defamatory of them.
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I have received written submissions from both sides dated, plaintiffs, 7 April 2021, and the defendant, 14 April 2021.
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The plaintiffs seek and order the defendant pay their costs of the proceedings on an indemnity basis, alternatively on an ordinary basis, the defendant opposes any order for costs or for that matter any award of damages.
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On 1 March 2021, the plaintiffs had requested that the defendant not make certain allegations about them in any forum; Affidavit of Ms Giles, 2 March 2021, annexure RRG-13, p.59.
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On the afternoon of 1 March 2021 the defendant telephoned the plaintiffs’ solicitors and offered to give an undertaking she would not defame the plaintiffs and would not say anything that was not true; affidavit of Alanah Tannous, 2 March 2021, at [3].
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However also on the afternoon of 1 March the defendant’s solicitor also suggested that his client was not obliged to give any undertaking; affidavit of Alanah Tannous, 2 March 2021, annexure AT-3, p.15.
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The plaintiffs in their written outline of 7 April submit that the defendant was in effect threatening to publish defamatory imputations if she did not get compensation she said was due to her.
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The matter came before the court on an urgent basis on 2 March 2021. Undertakings were then given to the court to the effect that the defendant would not publish the particular imputations complained of. An email of 17 March 2021 from the plaintiffs’ solicitor indicated that the matter was resolved by consent and “without admission” although I note that the final orders made on that same date did not reflect the non admission aspect of the matter.
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The plaintiffs further submit that they were obliged to bring proceedings as a result of the conduct of the defendant and as a result are entitled to indemnity costs. They sought that as the defendant never filed any evidence, her refusal initially to consent to injunctions was unreasonable and hence indemnity costs are appropriate. In the alternative the plaintiffs seek their costs of the proceedings on an ordinary basis.
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The defendant in her written submissions filed on 14 April submits that the plaintiffs have not put on any “case” for their claim for damages. Further she submits that she has not done anything to cause the plaintiffs harm and she has never defamed the plaintiffs.
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She also submits that the plaintiffs should not be awarded any costs for seeking unspecified damages. Further she submits that the plaintiffs have not compensated the defendant for the cancelled surgery.
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The defendant further submits that she agreed to the injunctions on a non-admission basis because the litigation was costing her too much. She also denies certain of the alleged content of a telephone call with Ms Giles, solicitor for the plaintiff and submits that the proceedings were completely unnecessary and unfounded. She also relies upon a letter of offer made on 12 March 2021 which she asserts was not accepted. On those bases she submits the plaintiffs should be denied their costs.
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No submissions were made by the plaintiffs on the question of damages. I would therefore find it inappropriate to quantify any damages given the arrangement otherwise made between the parties.
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However, on the question of costs, in my view the position taken by the defendant in agreeing to the injunctions was and in the circumstances should be regarded as a capitulation. The plaintiffs it seems to me would not have achieved the consent injunctions without commencing proceedings. However the defendant did relatively promptly capitulate and I do not regard her conduct as sufficiently unreasonable so as to warrant an order for indemnity costs.
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In Re Minister For Immigration and Ethnic Affairs (1997) 186 CLR 622, McHugh J commented that where a case is resolved without a determination of the merits the usual order will be each party pay its own costs unless a judge feels he/she is certain perhaps about the outcome. However here I am of the view that what the defendant did was effectively to capitulate and therefore I do consider she should pay the costs of the proceedings but on an ordinary basis.
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I have received an affidavit of Ms Alanah Tannous of 14 April which contains evidence of invoices from counsel indicating a total of $61,964.33 has been incurred. However the defendant has not responded to that amount nor have the plaintiffs indicated whether they are in effect making a claim for a lump sum determination. If that is what they intend, they would need to address the issues which applications such as those involve and the defendant would be entitled to respond.
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The only order I would currently make is that the defendant should pay the plaintiffs costs of the proceedings on an ordinary basis.
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Decision last updated: 17 June 2021
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