(1) The plaintiffs are to pay the costs of the defendants for the proceedings 2019/00045573 to the date of discontinuance and in relation to the parties’ applications in relation to costs, such costs to be paid on an indemnity basis.
Catchwords:
COSTS - plaintiffs discontinue proceedings for defamation in the course of lengthy interlocutory argument as to the particulars of the defence - plaintiffs seek costs of their challenges to the particulars despite having discontinued - defendants seek costs on an indemnity basis - costs of discontinuing under UCPR rr 42.19 and 42.20 - defendants entitled to costs orders in their favour - whether costs on an indemnity basis should be ordered - no issue of principle
[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.
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Details
AGLC
Eppinga v Kalil & Anor (No 2) [2022] NSWDC 591
Case
[2022] NSWDC 591
Decision Date
CaseChat Overview and Summary
The plaintiffs in Eppinga v Kalil & Anor (No 2) sought to recover costs related to their challenges to the particulars of the defendants' defence in a defamation proceeding. The proceedings were discontinued by the plaintiffs during the course of extensive interlocutory argument regarding the particulars of the defence. Despite discontinuing, the plaintiffs sought to recover costs associated with their challenges to the particulars. The defendants, in response, sought indemnity costs under the Uniform Civil Procedure Rules (UCPR).
The court was required to determine whether the plaintiffs were entitled to any costs despite discontinuing the proceedings, and if so, whether the defendants were entitled to indemnity costs. The court examined the relevant rules under UCPR rr 42.19 and 42.20, which pertain to costs of discontinuing proceedings. The court concluded that the defendants were entitled to costs as they were the prevailing party in the interlocutory proceedings. The question of whether the costs should be on an indemnity basis was also addressed, with the court finding that there was no issue of principle preventing the award of such costs.
The court ultimately ordered that the plaintiffs pay the defendants' costs for the proceedings up until the date of discontinuance, as well as costs related to the parties' applications in relation to costs. These costs were to be paid on an indemnity basis. This decision highlights the importance of the procedural rules governing costs in interlocutory proceedings and the potential for indemnity costs where one party discontinues proceedings.
Orders
Orders of the court
(1) The plaintiffs are to pay the costs of the defendants for the proceedings 2019/00045573 to the date of discontinuance and in relation to the parties’ applications in relation to costs, such costs to be paid on an indemnity basis.