The Court ordered indemnity costs under s 40(2)(b) of the Defamation Act 2005 (NSW) against an unsuccessful defamation plaintiff who unreasonably refused a Calderbank offer to walk away with no order as to costs, where the proceedings were subsequently dismissed for want of due dispatch and failure to disclose a reasonable cause of action. The Court also made a specified gross sum costs order of $136,092, applying a 20% discount to the total costs claimed (net of GST), finding this discount appropriate on indemnity costs where the plaintiff was unlikely to participate in any formal assessment. The Court noted that s 40(2)(b) does the work that an express statement of intent to seek indemnity costs otherwise performs in a Calderbank letter, such that the absence of an express reference to indemnity costs in the offer letter was not fatal.
The full text is available to signed-in members.