Channel Seven Sydney Pty Ltd v Mahommed (No 2)

(2011) 80 NSWLR 210; [2011] NSWCA 6

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Defamation proceedings
3. › Indemnity costs
4. › Settlement offer
5. › Whether offer genuine
6. › Whether application should be made at trial
7. › Defamation Act 1974 (NSW), s 48A
1. Costs
2. › Offer of compromise
3. › Whether judgment no less favourable than offer
4. › Interest accruing after offer made
5. › Whether post-offer interest to be disregarded
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 42.16, 51.47, 51.48
1. Costs
2. › General rule
3. › Multiple issues
4. › Apportionment of costs to reflect degree of success
5. › Defamation proceedings
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Quick Take

When determining whether a plaintiff obtained a judgment no less favourable than an offer of compromise under UCPR 42.14, interest accruing after the date of the offer must be disregarded under UCPR 42.16. Applications for indemnity costs under s 48A(2) of the Defamation Act 1974 (NSW) based on a defendant's unreasonable failure to make a settlement offer should be made at trial, not raised for the first time on appeal. In defamation proceedings where a defendant achieves only modest success (here, 6.25% reduction in damages), a costs order requiring the defendant to pay 90% of the plaintiff's costs may be appropriate.