CITATION: Millane & Ors v Nationwide News Pty Ltd t/as Cumberland Newspaper Group [2004] NSWSC 1023 HEARING DATE(S): 28/10/04 JUDGMENT DATE:
3 November 2004JUDGMENT OF: Hoeben J at 1 DECISION: Defendant's application for indemnity costs rejected - plaintiffs to pay the defendant's costs of the proceedings on a party and party basis. CATCHWORDS: Defendant's Calderbank offer - indemnity costs - Notice to Admit Facts LEGISLATION CITED: Supreme Court Rules - Pt 52A r19 CASES CITED: Calderbank v Calderbank (1975) 3 WLR 586
Hillier v Sheather (1995) 36 NSWLR 414
Leichhardt Municipal Council v Green [2004] NSWCA 341
Multicon Engineering Pty Limited v Federal Airports Corporation (1996) 138 ALR 425
Oshlack v Richmond River Council (1998) 193 CLR 72
Palmolive v Cussons (1993) 118 ALR 248PARTIES :
John Millane - First Plaintiff
Andrew Partridge - Second Defendant
Mathew Partridge - Third Plaintiff
Relocorp Pty Ltd t/as Cousins & Co - Fourth Plaintiff
Nationwide News Pty Ltd t/as Cumberland Newspaper Group - DefendantFILE NUMBER(S): SC 20213/02 COUNSEL: Mr CA Evatt/Mr CJ Dibb - Plaintiffs
Mr A Henskens - DefendantSOLICITORS: Peter R Murphy & Co - Plaintiffs
Cropper Parkhill - Defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONHOEBEN J
Wednesday, 3 November, 2004
JUDGMENT – Re: Costs20213/02 – John MILLANE Andrew PARTRIDGE Mathew PARTRIDGE and RELOCORP PTY LTD t/as COUSINS & Co v NATIONWIDE NEWS PTY LIMITED t/as CUMBERLAND NEWSPAPER GROUP
1 HIS HONOUR: Judgment was entered in favour of the defendant on 17 September 2004. Subject to further submissions, the costs order proposed was that the plaintiffs pay the defendant’s costs on a party and party basis. The defendant now seeks the following orders:
(b) Alternatively, that the plaintiffs be ordered to pay sixty percent of its preparation costs after 18 August 2004 and fifty six percent of its costs of the hearing on an indemnity basis.
(a) That the plaintiffs be ordered to pay its costs from 8 June 2004 on an indemnity basis.
2 Significant dates in the matter are:
2 May 2002 - publication of article.
May/June 2002 - plaintiffs commence proceedings seeking damages for
- defamation.
26 May 2004 - offer by plaintiffs to defendant to settle - $180,000
inclusive of costs.
1 June 2004 - defendant offers to settle – judgment for defendant but
- each party pay own costs.
Compromise - $90,000 plus costs.
17 August 2004 - defendant serves Notice to Admit Facts.
31 August 2004 - plaintiffs serve Notice Disputing Facts.
31 August -
9 September 2004 - hearing as to defences and damages.
3 It was not in dispute that the offer made by the defendant on 1 June 2004 was a real offer in that as of that date, the defendant had incurred legal costs and disbursements of at least $80,000. It was not in dispute that the defendant’s offer of 1 June 2004 operated…
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- Case
- [2004] NSWSC 1023
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the defendant's offer was made in good faith and, if so, whether the plaintiff should be ordered to pay the defendant's costs. The court examined the nature and timing of the offer, the context in which it was made, and whether it had any reasonable prospect of success. Additionally, the court considered whether the plaintiff had been given adequate notice to admit facts, as required by the court's procedural rules.
The court found that the defendant's offer was indeed made in good faith, as it was based on a genuine belief that the plaintiff's claims were without merit. The court also determined that the plaintiff had been given sufficient notice to admit facts, as the defendant had clearly outlined the basis for its offer and the facts upon which it relied. Consequently, the court ordered the plaintiff to pay the defendant's costs, subject to certain conditions. This ruling underscored the importance of good faith in making offers under the Calderbank provisions and the necessity for parties to provide adequate notice to admit facts.
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