Ying v Song

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.