Network Ten Pty Limited v van Onselen (No 2) - [2023] NSWSC 863

Supreme Court

New South Wales

Medium Neutral Citation: Network Ten Pty Limited v van Onselen (No 2) [2023] NSWSC 863
Hearing dates: On the papers
Date of orders: 24 July 2023
Decision date: 24 July 2023
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision:
The defendant is to pay the plaintiff’s costs

Catchwords:
COSTS — the plaintiff brought proceedings alleging breach by the defendant of a non-disparagement clause in a Deed of Release — the plaintiff established breach and the Court made a declaration to that effect but the Court declined to grant an injunction restraining further breach by the defendant on the footing that there was no realistic risk that the defendant would further breach — HELD — the plaintiff was entitled to an order for costs on the footing that it had, in practical terms, succeeded in circumstances where the defendant had denied breach and had denied the validity of the non-disparagement clause and had himself put that there was no realistic prospect of him further breaching

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Category: Costs
Parties: Network Ten Pty Limited (ABN 91 052 515 250) (Plaintiff)
Dr Peter van Onselen (Defendant)
Representation:
Counsel:
A Moses SC and P Sharp (Plaintiff)
Solicitors:
Baker McKenzie (Plaintiff)
Laxon Lex Lawyers (Defendant)

File Number(s): 2023/00177027

JUDGMENT

On 14 July 2023, I gave the principal judgment in these proceedings: Network Ten Pty Limited v van Onselen [2023] NSWSC 829 (the Principal Judgment).
Definitions in the Principal Judgment are used here.
I made a declaration in the following terms:

The Court declares that the publication in The Australian Business Review section of The Australian newspaper on 29 May 2023 of the Article headed “Paramount woes raise questions about the long term viability of Network 10” was a breach by the defendant of cl 7.1 of the Deed entered into by the plaintiff and the defendant on 3 March 2023.

However, I declined to order an injunction restraining further breach, on the basis that whilst a breach had been established, I was satisfied that there is no real risk that Dr van Onselen will further breach the Deed.
Only costs remains to be dealt with. The parties have agreed that costs is to be dealt with on the papers. I have received written submissions from both sides.
Ten seeks an order that Dr van Onselen pay its costs of the proceedings on the ordinary basis as agreed or assessed on the footing that it succeeded.
Dr van Onselen submits that the Court should make no order as to costs to the intent that each party should pay their own and, in the alternative, that should the Court consider that Ten should have a costs order, the claimable costs should be reduced having regard to the limited relief that was obtained. Dr van Onselen submits that an appropriate alternative costs order would be that he pay Ten’s costs fixed in a lump sum of $50,000, or such other lump sum as the Court…

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.

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Details

Case: [2023] NSWSC 863
Decision Date: 24 July 2023

CaseChat Overview and Summary

Network Ten Pty Limited initiated proceedings against van Onselen, asserting that he breached a non-disparagement clause contained in a Deed of Release. The dispute was brought before the Court, which was tasked with determining the validity of the non-disparagement clause, whether the defendant breached it, and the appropriate remedies for any such breach. The Court was also required to consider the costs associated with the litigation, particularly in light of the plaintiff's partial success.

The Court found that the plaintiff had indeed established the breach of the non-disparagement clause and made a declaration to that effect. However, the Court declined to grant an injunction to prevent further breaches, reasoning that there was no realistic risk of the defendant breaching the clause again. Despite the plaintiff's success in establishing the breach, the Court considered the defendant's persistent denial of both the breach and the validity of the non-disparagement clause. The Court concluded that the plaintiff was entitled to an order for costs as it had, in practical terms, succeeded in circumstances where the defendant had denied breach and the validity of the clause.

Ultimately, the Court ordered van Onselen to pay costs to Network Ten Pty Limited, acknowledging the plaintiff's success in establishing the breach of the non-disparagement clause. The Court's decision highlighted the importance of the practical outcome of litigation in determining the allocation of costs, even where the relief sought was not fully granted.

Orders