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Ying v Song

Ying v Song

Case [2011] NSWSC 618 22 June 2011

Costs

Indemnity Costs

Interest on Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ying v Song [2011] NSWSC 618
Hearing dates: 10 June 2011
Decision date: 22 June 2011
Jurisdiction: Equity Division - Corporations List
Before: Ward J
Decision:
Costs and interest orders made

Catchwords: COSTS - application for indemnity costs in reliance on Calderbank offers and offer of compromise - application for interest on costs - HELD - indemnity costs appropriate in respect of first defendant - subject to further order, costs of proceedings after joinder of second defendant paid as to 50% on an indemnity basis and 50% on a party/party basis - interest ordered on costs and disbursements incurred by defendants during course of proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120
Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349
Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd [2002] NSWSC 280
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (Formerly GIO Insurance Ltd) and Ors [2006] NSWSC 583
Black v S Freedman & Company [1910] HCA 58; (1910) 12 CLR 105
Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
Commonwealth of Australia v Gretton [2008] NSWCA 117
Corbett Court Pty Limited v Quasar Constructions (NSW) Pty Limited [2008] NSWSC 1423
Davies v Kur-ring-gai Municipal Council [2003] NSWSC 1010
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251; (2004) 51 ACSR 555
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036
Fexuto Pty Ltd v Bosjnak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Hanave Pty Ltd v LFOT Pty Ltd (formerly Jagar Pty Ltd) [1998] FCA 1429
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hillier v Sheather (1995) 36 NSWLR 414
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Jamal v Secretary Department of Health (1988) 14 NSWLR 252
Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Leichhardt Municipal Council v Green [2004] NSWCA 341
M T Associates Pty Ltd v Aqua-Max Pty Ltd & Anor [2000] VSC 163
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Morgan v Johnson (1998) 44 NSWLR 578
Oshlack v Richmond River Council (1998) 193 CLR 72
Rosebanner Pty Ltd v Ausgrid [2011]…

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 Ying v Song

Details

AGLC: Ying v Song [2011] NSWSC 618
Case: [2011] NSWSC 618
Decision Date: 22 June 2011

CaseChat Overview and Summary

Ying commenced proceedings against Song, the first defendant, seeking damages for defamation. The second defendant was subsequently joined. The dispute was heard in the Supreme Court of New South Wales. The primary issue for the court was to determine whether the first defendant was entitled to indemnity costs in reliance on a Calderbank offer and an offer of compromise, and whether interest should be awarded on costs and disbursements incurred by the defendants during the proceedings.

The court found that the first defendant was entitled to indemnity costs for the period before the joinder of the second defendant. This was because the first defendant had made a Calderbank offer and a compromise offer that the plaintiff had unreasonably rejected. However, for the period after the joinder of the second defendant, the court ordered that 50% of the costs were to be paid on an indemnity basis and 50% on a party/party basis. The court reasoned that the joinder of the second defendant introduced additional complexities that justified a partial reduction in the indemnity costs awarded to the first defendant. Regarding the interest on costs and disbursements, the court held that the defendants were entitled to interest from the date of the Calderbank offer until the date of judgment.

The court's decision resulted in the first defendant receiving indemnity costs for the initial period of the proceedings, with a reduced indemnity basis post-joinder of the second defendant. Additionally, the defendants were awarded interest on their costs and disbursements from the date of the Calderbank offer to the date of judgment. This outcome balanced the principles of indemnity costs with the need to account for the additional complexities introduced by the joinder of the second defendant.

Orders