Jay & Anor v Petrikas & Ors (No.5)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jay & Anor v Petrikas & Ors (No.5) [2023] NSWDC 7

Hearing dates:

On the papers

Date of orders:

30 January 2023

Decision date:

30 January 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 36

Catchwords:

COSTS – indemnity costs - non-acceptance of rules offer and Calderbank offers – whether rules offer compliant with rules – whether Court should ‘otherwise order’ – Civil Procedure Rules 2005 (NSW), r 42.15A

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56-60

Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 36.15, 42.1, 42.15A

Cases Cited:

Calderbank v Calderbank (1975) 3 All ER 333

Jay & Anor v Petrikas & Ors (No.2) [2021] NSWDC 512

Jay & Anor v Petrikas & Ors (No.4) [2022] NSWDC 628

Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208

Leach v Nominal Defendant (QBE) Insurance (Aust) Ltd (No.2) [2014] NSWCA 391

Maitland Hospital v Fisher [No.2] (1992) 27 NSWLR 721

Messiter v Hutchinson (1987) 10 NSWLR 525

Morgan v Johnson (1998) 44 NSWLR 578

Noon v Bondi Beach Astra Retirement Village Pty Ltd (No.2) [2010] NSWCA 285

South Eastern Sydney Area Health Service v King [2006] NSWCA 2

Walker v Harwood [2017] NSWCA 228

Category:

Costs

Parties:

Mr G Jay (first plaintiff)
Mr J Peters (second plaintiff)
Mr C Petrikas (first defendant)
Mr D Ryan (second defendant)
Mr I Wedge (third defendant)
Ms K Hodges (fourth defendant)

Representation:

Counsel:
Mr T Brennan SC with Mr T Crispin for the plaintiffs
Mr M Richardson SC with Mr T Senior for the defendants

Solicitors:
A R Conolly & Company for the plaintiffs
Crown Solicitors Office (NSW) for the defendants

File Number(s):

2019/00072815

Publication restriction:

Nil

REASONS for Judgment

1. I delivered reasons for judgment in this proceeding on 13 December 2022^[1] . The question of costs was reserved. The parties have since provided written submissions on costs.

   1. Jay & Anor v Petrikas & Ors (No.4) [2022] NSWDC 628 (the “Primary Judgment’). These reasons on costs assume the reader’s familiarity with the Primary Judgment

2. It will be recalled that the proceeding commenced, against the first, second and third defendants on 6 March 2019. The fourth defendant was joined to the proceeding in May 2020. The sole cause of action run against all defendants was the tort of injurious falsehood. Ultimately, the plaintiffs ran that action against the first to third defendants on the First Publication and ran that action against the fourth defendant on the Second and Third Publications.

3. Judgment was entered for each of the defendants. A summary of the reasons was set out in paragraph [703] of the Primary Judgment. That summary was expressed as follows:

“(a) the representations were not  ‘of or concerning the plaintiffs’ goods or businesses’;

(b) there was a very limited number of false representations found in the publications;

(c) such false representations by the defendants, as have been found, were not actuated by malice;

(d) such falsities,…