Lee v Sheen (No 2) - [2021] QDC 211

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee & Ors v Sheen & Anor (No 2) [2021] QDC 211

PARTIES:

CARRIE KA YEE LEE

(first plaintiff)

and
ANNETTE LEUNG

(second plaintiff)

and

CHUNZI ZHANG

(third plaintiff)

and
ZIXI LI
(fifth plaintiff)
and
RIVER CITY LEGAL PTY LTD (ACN 164 303 093)
(sixth plaintiff)
and
CHANG LONG AUSTRALIA PTY LTD
(ACN 614 186 480)
(seventh plaintiff)
and
WATER LEGAL PTY LTD (ACN 164 122 749)
(eighth plaintiff)
v
JAMES DANIEL SHEEN
(first defendant)
and
NSW LEGAL PTY LTD (ACN 607 586 416)
(second defendant)

FILE NO:

4886 of 2017

DIVISION:

Civil

PROCEEDING:

Costs Hearing

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

7 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions received 29 March 2021 and 13 April 2021.

JUDGE:

Byrne QC DCJ

ORDERS:

1.       The first defendant pay the first plaintiff’s costs of the proceedings to be assessed on the indemnity basis.

2.       The second, third, fifth, sixth, seventh and eighth plaintiffs pay the first defendant’s costs of the proceedings on the standard basis, but limited to the additional costs incurred by reason of the inclusion of those plaintiffs in the proceeding and excluding any costs incurred on or after 3 December 2019 in relation to:

a.       the defendants’ complaints to the Queensland Legal Services Commissioner and the Victorian Legal Services Board and Commissioner; and

b. the defences pleaded in reliance on sections 25 and 26 of the Defamation Act 2005.

3.       The first, second, third, fifth, sixth, seventh and eighth plaintiffs pay the second defendant’s costs of and incidental to the proceedings on the indemnity basis, but limited to the additional costs incurred by reason of the inclusion of the second defendant in the proceedings and excluding any costs incurred on or after 3 December 2019 in relation to:

a.       the defendants’ complaints to the Queensland Legal Services Commissioner and the Victorian Legal Services Board and Commissioner; and

b. the defences pleaded in reliance on sections 25 and 26 of the Defamation Act 2005.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where the first plaintiff was awarded damages for defamation against the first defendant and all other actions against the first defendant were dismissed and all actions against the second defendant were dismissed - where costs follow the event -where the defendants made three separate settlement offers to the plaintiffs prior to the commencement of the trial on differing bases - where each settlement offer was expressed to be made in light of Calderbank principles - where each settlement offer was not accepted by the plaintiffs - whether the first defendant unreasonably failed to make a settlement offer to the first plaintiff as the offers were not reasonable at the time they were made - whether the plaintiffs unreasonably failed to accept the settlement offers where the defendants succeeded - whether the plaintiffs’ failure to accept the offers was unreasonable or imprudent on Calderbank principles – whether Rule 361 of the

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 Lee v Sheen (No 2)

Details

AGLC: Lee v Sheen (No 2) [2021] QDC 211
Case: [2021] QDC 211
Decision Date: 7 September 2021

CaseChat Overview and Summary

In the case of Lee v Sheen (No 2), the plaintiffs, including Lee, sought damages for defamation against the defendants, Sheen and others. The first plaintiff, Lee, was awarded damages for defamation against the first defendant, Sheen, and all other actions against Sheen were dismissed. Additionally, all actions against the second defendant were dismissed. The court was required to decide the issue of indemnity costs, settlement offers, and the appropriate structure of costs orders in light of the unsuccessful pursuit of certain claims by the defendants.

The court considered whether the defendants unreasonably failed to make a settlement offer to the first plaintiff and whether the plaintiffs unreasonably failed to accept the settlement offers made by the defendants. The court held that the settlement offers were not unreasonable and the plaintiffs' failure to accept them was not imprudent under Calderbank principles. The court also addressed the structure of the costs order, determining that the first plaintiff should receive all her costs and other costs orders should recognise this entitlement. The court further held that certain matters should be excluded from the costs to be paid by the plaintiffs to the defendants given their unreasonable pursuit of those matters.

The court ordered that the first defendant pay the first plaintiff’s costs of the proceedings on the indemnity basis. Additionally, the second, third, fifth, sixth, seventh, and eighth plaintiffs were ordered to pay the first defendant’s costs on the standard basis, excluding certain costs incurred on or after 3 December 2019. Similarly, the first, second, third, fifth, sixth, seventh, and eighth plaintiffs were ordered to pay the second defendant’s costs on the indemnity basis, excluding certain costs incurred on or after 3 December 2019. This decision ensures that the costs reflect the outcome of the proceedings and the conduct of the parties.

Orders

Orders of the court

1. The first defendant pay the first plaintiff’s costs of the proceedings to be assessed on the indemnity basis.

2. The second, third, fifth, sixth, seventh and eighth plaintiffs pay the first defendant’s costs of the proceedings on the standard basis, but limited to the additional costs incurred by reason of the inclusion of those plaintiffs in the proceeding and excluding any costs incurred on or after 3 December 2019 in relation to:

a. the defendants’ complaints to the Queensland Legal Services Commissioner and the Victorian Legal Services Board and Commissioner; and

b. the defences pleaded in reliance on sections 25 and 26 of the Defamation Act 2005.

3. The first, second, third, fifth, sixth, seventh and eighth plaintiffs pay the second defendant’s costs of and incidental to the proceedings on the indemnity basis, but limited to the additional costs incurred by reason of the inclusion of the second defendant in the proceedings and excluding any costs incurred on or after 3 December 2019 in relation to:

a. the defendants’ complaints to the Queensland Legal Services Commissioner and the Victorian Legal Services Board and Commissioner; and

b. the defences pleaded in reliance on sections 25 and 26 of the Defamation Act 2005.

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

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CITATION:	Lee & Ors v Sheen & Anor (No 2) [2021] QDC 211
PARTIES:	CARRIE KA YEE LEE (first plaintiff) and ANNETTE LEUNG (second plaintiff) and CHUNZI ZHANG (third plaintiff) and ZIXI LI (fifth plaintiff) and RIVER CITY LEGAL PTY LTD (ACN 164 303 093) (sixth plaintiff) and CHANG LONG AUSTRALIA PTY LTD (ACN 614 186 480) (seventh plaintiff) and WATER LEGAL PTY LTD (ACN 164 122 749) (eighth plaintiff) v JAMES DANIEL SHEEN (first defendant) and NSW LEGAL PTY LTD (ACN 607 586 416) (second defendant)
FILE NO:	4886 of 2017
DIVISION:	Civil
PROCEEDING:	Costs Hearing
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	7 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions received 29 March 2021 and 13 April 2021.
JUDGE:	Byrne QC DCJ
ORDERS:	1. The first defendant pay the first plaintiff’s costs of the proceedings to be assessed on the indemnity basis. 2. The second, third, fifth, sixth, seventh and eighth plaintiffs pay the first defendant’s costs of the proceedings on the standard basis, but limited to the additional costs incurred by reason of the inclusion of those plaintiffs in the proceeding and excluding any costs incurred on or after 3 December 2019 in relation to: a. the defendants’ complaints to the Queensland Legal Services Commissioner and the Victorian Legal Services Board and Commissioner; and b. the defences pleaded in reliance on sections 25 and 26 of the *Defamation Act 2005. 3. The first, second, third, fifth, sixth, seventh and eighth plaintiffs pay the second defendant’s costs of and incidental to the proceedings on the indemnity basis, but limited to the additional costs incurred by reason of the inclusion of the second defendant in the proceedings and excluding any costs incurred on or after 3 December 2019 in relation to: a. the defendants’ complaints to the Queensland Legal Services Commissioner and the Victorian Legal Services Board and Commissioner; and* b. the defences pleaded in reliance on sections 25 and 26 of the *Defamation Act 2005*.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – COSTS – INDEMNITY COSTS – SETTLEMENT OFFERS – where the first plaintiff was awarded damages for defamation against the first defendant and all other actions against the first defendant were dismissed and all actions against the second defendant were dismissed - where costs follow the event -where the defendants made three separate settlement offers to the plaintiffs prior to the commencement of the trial on differing bases - where each settlement offer was expressed to be made in light of Calderbank principles - where each settlement offer was not accepted by the plaintiffs - whether the first defendant unreasonably failed to make a settlement offer to the first plaintiff as the offers were not reasonable at the time they were made - whether the plaintiffs unreasonably failed to accept the settlement offers where the defendants succeeded - whether the plaintiffs’ failure to accept the offers was unreasonable or imprudent on Calderbank principles – whether Rule 361 of the