Eppinga v Kalil & Anor (No 2)

Case [2022] NSWDC 591


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Eppinga v Kalil & Anor (No 2) [2022] NSWDC 591
Hearing dates: 30 November 2022
Date of orders: 02 December 2022
Decision date: 02 December 2022
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(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

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 98

Defamation Act 2005 (NSW), ss 40, 42

Uniform Civil Procedure Rules 2005 (NSW), rr 42.7, 42.19 and 42.20

Cases Cited:

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125

Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29

Buckeridge v Walter [2006] WASCA 22

Cretazzo v Lombardi [1975] 13 SASR 1

Defteros v Google Inc LLC & Anor (Costs) [2017] 189

Eppinga v Kalil & Anor [2021] NSWDC 549

Favell v Queensland Newspapers Pty Ltd (2005) 219 CLR 165; [2005] HCA 52

Fogarty v Nationwide News Pty Ltd [2013] WASC 477

Fordyce v Fordham & Anor [2006] NSWCA 274

Foukkare v Angreb Pty Ltd [2006] NSWCA 335

Gray v John Fairfax Publications Pty Ltd [2007] WASC 274

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440

Investments Commission v Diploma Group Limited (No 3) [2017] FCA 891

Kalil v Eppinga [2020] NSWDC 407

Khalil v Ball as liquidator of Diamondwish Pty Ltd (in liq) and related matters [2022] NSWCA 161

Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347

Korolak v Bauer Media Pty Ltd (No. 2) [2016] NSWDC 115

Lahoud v Lahoud [2006] NSWSC 126

MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Muriniti v Kalil [2021] NSWCA 81

Muriniti v Kalil [2022] NSWCA 109

Oshlack v Richmond River Council (1998) 193 CLR 72

Packer v Meagher [1984] 3 NSWLR 486

Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352

Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35; [1980] HCA 41

Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107

Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622

Rivkin…

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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.

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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