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

Link copied
Case Copied 18 min read

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,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Jay & Anor v Petrikas & Ors (No.5) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] NSWDC 7
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Jay & Anor v Petrikas & Ors (No.5) involved a dispute regarding indemnity costs. The plaintiffs sought indemnity costs from the defendants for their failure to accept offers under the Uniform Civil Procedure Rules 2005 (NSW) and Calderbank offers. The defendants challenged the compliance of these offers with the rules, arguing that the plaintiffs' failure to provide certain documents prevented the offers from being compliant. The court was required to determine whether the offers were compliant and if the plaintiffs were entitled to indemnity costs. It also needed to consider whether the Court should exercise its discretion to 'otherwise order' costs under Rule 42.15A.

The court examined the requirements for making and accepting offers under the Uniform Civil Procedure Rules 2005 (NSW). It assessed whether the plaintiffs' offers were compliant and if the defendants' refusal to accept them was justified. The court also considered the principles surrounding Calderbank offers and the discretion available to the Court under Rule 42.15A. The court held that the offers were indeed compliant, and the defendants' refusal to accept them was unreasonable. It found that the plaintiffs were entitled to indemnity costs, and the court exercised its discretion to order the defendants to pay those costs.

The court's decision was grounded in a detailed analysis of the procedural rules and the principles surrounding offers in litigation. It emphasised the importance of compliance with the rules and the consequences of unreasonable refusal to accept offers. The court's exercise of discretion under Rule 42.15A was informed by the overarching objective of the Civil Procedure Rules 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The court ordered the defendants to pay the indemnity costs as awarded by the Registrar, highlighting the significance of adhering to procedural obligations in litigation.

Orders

Orders of the court

See paragraph 36

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.