Larach v Urriola (No. 2) - [2009] NSWDC 142

Reported Decision:
9 DCLR (NSW) 81

District Court

CITATION: Larach v Urriola (No. 2) [2009] NSWDC 142

HEARING DATE(S): 19 June 2009

JUDGMENT DATE:
19 June 2009

EX TEMPORE JUDGMENT DATE: 19 June 2009

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Vary order 1 of the Judgment of 22 May 2009 to include interest in the sum of $739.74, making a total of $10,739.74 up to and including 22 May 2009 together with a daily interest rate of $2.65 thereafter.
(2) Vary order 2 of the Judgment of 22 May 2009 to include interest in the sum of $369.05, making a total of $5,369.05 up to and including 22 May 2009 together with a daily interest rate of $1.32 thereafter.
(3) Vary order 3 of the Judgment of 22 May 2009 to include interest in the sum of $337.40, making a total of $5,337.40 up to and including 22 May 2009 together with a daily interest rate of $1.32 thereafter.
(4) Vary order 4 of the Judgment of 22 May 2009 to include interest in the sum of $1,349.59, making a total of $21,349.59 up to and including 22 May 2009 together with a daily interest rate of $5.26 thereafter.
(5) Vary the costs order of 22 August 2008 concerning the vacating of the trial date from costs reserved to costs in the cause.
(6) The defendants to pay the plaintiffs’ costs of these proceedings on an indemnity basis.

CATCHWORDS: TORT - defamation - costs - special costs provisions designed to promote the making of offers in defamation actions - defendants make "walk-away" offers at conclusion of litigation but otherwise make no offers - plaintiffs' application for indemnity costs for the whole of the trial granted

LEGISLATION CITED: Defamation Act 1974 (NSW), s 48A
Defamation Act 2005 (NSW), ss 14 and 40

CASES CITED: Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Hennessy v Lynch (No 4) [2008] NSWDC 15
Larach v Urriola [2009] NSWDC 97
Leichhardt Municipal Council v Green [2004] NSWCA 341
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353

TEXTS CITED: New South Wales, Parliamentary Debates, Legislative Assembly, 12 October 2005, 18518

PARTIES: First Plaintiff: Oscar Larach
Second Plaintiff: Stormwater Solutions LLC
First Defendant: Humberto Urriola
Second Defendant: Atlantis Corporation Pty Limited

FILE NUMBER(S): 1468 of 2007

COUNSEL: Plaintiffs: Mr R Potter
Defendants: Mr M McHugh

SOLICITORS: Plaintiffs: Bolzan & Dimitri
Defendants: Alexander & Associates

Judgment

1. On 22 May 2009 I handed down judgment (Larach v Urriola [2009] NSWDC 97) for the plaintiffs awarding damages totaling $20,000 for the first plaintiff (a corporation) for three publications and for the sum of $20,000 for the second plaintiff (a director of the corporation) for one publication. Pursuant to a liberty to restore the parties now seek to determine issues of interest and costs.

2. The orders for interest and for the costs occasioned by reason of the vacating of an earlier hearing date are not disputed and I have made orders concerning…

Grounds of appeal

[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.

Continue reading Larach v Urriola (No. 2)

Details

AGLC: Larach v Urriola (No. 2) [2009] NSWDC 142
Case: [2009] NSWDC 142
Decision Date: 19 June 2009

CaseChat Overview and Summary

The case of Larach v Urriola (No. 2) involved the plaintiffs, Larach, seeking damages for defamation against the defendants, Urriola. The dispute centred around the defendants' alleged defamatory statements and the plaintiffs' claim for costs under the special costs provisions in defamation actions, which are intended to encourage the making of offers during litigation. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court had to address was whether the defendants' "walk-away" offers, made only at the conclusion of the litigation, were sufficient to warrant an award of indemnity costs to the plaintiffs for the entire duration of the trial. The plaintiffs argued that the defendants' failure to make any other offers throughout the litigation justified such an award, while the defendants contended that their final offers should have been taken into account.

The court found in favour of the plaintiffs, granting their application for indemnity costs for the entire trial. The reasoning of the court was that the special costs provisions are designed to promote the early resolution of defamation claims, and the defendants' conduct in making no offers until the very end of the litigation did not align with this objective. Consequently, the defendants were ordered to pay the plaintiffs' costs of the proceedings on an indemnity basis. The court also varied previous orders to include interest on the awarded damages.

In summary, the court held that the defendants' failure to make any offers during the litigation, apart from a "walk-away" offer at its conclusion, justified the plaintiffs' entitlement to indemnity costs for the entire trial. The defendants were ordered to pay the plaintiffs' costs, including interest on the awarded damages, as varied by the court's orders.

Orders

Orders of the court

(1) Vary order 1 of the Judgment of 22 May 2009 to include interest in the sum of $739.74, making a total of $10,739.74 up to and including 22 May 2009 together with a daily interest rate of $2.65 thereafter. (2) Vary order 2 of the Judgment of 22 May 2009 to include interest in the sum of $369.05, making a total of $5,369.05 up to and including 22 May 2009 together with a daily interest rate of $1.32 thereafter. (3) Vary order 3 of the Judgment of 22 May 2009 to include interest in the sum of $337.40, making a total of $5,337.40 up to and including 22 May 2009 together with a daily interest rate of $1.32 thereafter. (4) Vary order 4 of the Judgment of 22 May 2009 to include interest in the sum of $1,349.59, making a total of $21,349.59 up to and including 22 May 2009 together with a daily interest rate of $5.26 thereafter. (5) Vary the costs order of 22 August 2008 concerning the vacating of the trial date from costs reserved to costs in the cause. (6) The defendants to pay the plaintiffs' costs of these proceedings 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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CITATION:	Larach v Urriola (No. 2) [2009] NSWDC 142
HEARING DATE(S):	19 June 2009
JUDGMENT DATE:	19 June 2009
EX TEMPORE JUDGMENT DATE:	19 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Vary order 1 of the Judgment of 22 May 2009 to include interest in the sum of $739.74, making a total of $10,739.74 up to and including 22 May 2009 together with a daily interest rate of $2.65 thereafter. (2) Vary order 2 of the Judgment of 22 May 2009 to include interest in the sum of $369.05, making a total of $5,369.05 up to and including 22 May 2009 together with a daily interest rate of $1.32 thereafter. (3) Vary order 3 of the Judgment of 22 May 2009 to include interest in the sum of $337.40, making a total of $5,337.40 up to and including 22 May 2009 together with a daily interest rate of $1.32 thereafter. (4) Vary order 4 of the Judgment of 22 May 2009 to include interest in the sum of $1,349.59, making a total of $21,349.59 up to and including 22 May 2009 together with a daily interest rate of $5.26 thereafter. (5) Vary the costs order of 22 August 2008 concerning the vacating of the trial date from costs reserved to costs in the cause. (6) The defendants to pay the plaintiffs’ costs of these proceedings on an indemnity basis.
CATCHWORDS:	TORT - defamation - costs - special costs provisions designed to promote the making of offers in defamation actions - defendants make "walk-away" offers at conclusion of litigation but otherwise make no offers - plaintiffs' application for indemnity costs for the whole of the trial granted
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 48A Defamation Act 2005 (NSW), ss 14 and 40
CASES CITED:	Davis v Nationwide News Pty Ltd [2008] NSWSC 946 Hennessy v Lynch (No 4) [2008] NSWDC 15 Larach v Urriola [2009] NSWDC 97 Leichhardt Municipal Council v Green [2004] NSWCA 341 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
TEXTS CITED:	New South Wales, Parliamentary Debates, Legislative Assembly, 12 October 2005, 18518
PARTIES:	First Plaintiff: Oscar Larach Second Plaintiff: Stormwater Solutions LLC First Defendant: Humberto Urriola Second Defendant: Atlantis Corporation Pty Limited
FILE NUMBER(S):	1468 of 2007
COUNSEL:	Plaintiffs: Mr R Potter Defendants: Mr M McHugh
SOLICITORS:	Plaintiffs: Bolzan & Dimitri Defendants: Alexander & Associates