CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135 Hearing dates: 22—24 May 2023 Decision date: 20 June 2023 Before: Ward P at [1]; Mitchelmore JA at [2]; Adamson JA at [3] Decision: Proceedings 2022/214060 (1) Dismiss the cross-appeal. (2) Grant leave to the applicants to appeal in respect of costs. (3) Set aside orders (7) and (8) made by Stevenson J on 23 June 2022 in proceedings 2019/343896 and in lieu thereof make the following order: Order the second and third plaintiffs to pay the first and second defendants' costs of the proceedings (including the amended summons and amended cross summons) on an indemnity basis. (4) Subject to (5), order the respondents to pay the applicants'/appellants' costs of the appeal. (5) If any application is to be made for a different order for the costs of the appeal, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. Proceedings 2022/214083 (1) Grant leave to appeal on grounds 1, 2, 4, 6, 7, 8, 9 and 10 but otherwise refuse leave to appeal. (2) Allow the appeal. (3) Set aside orders (1), (2), (3) and (4) made by Stevenson J on 23 June 2022 in proceedings 2020/264993 and in lieu thereof make the following orders: (a) Judgment for the defendants. (b) Subject to (c) below, order the plaintiff to pay the defendants' costs of the proceedings. (c) If any application is to be made for a different order for the costs of the Defamation proceedings, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. (4) Subject to (5), order the respondents to pay the applicants'/appellants' costs of the appeal. (5) If any application is to be made for a different order for the costs of the appeal, direct that the party send by email a notice of motion, together with any evidence and submissions in support, to the Associate to the Presiding Judge within 14 days hereof. (6) Release the second defendant from the undertaking given by him on his own behalf and on behalf of the first defendant, the making of which was noted by the primary judge in (3) of the orders and notations made on 23 June 2022. Catchwords: MISLEADING AND DECEPTIVE CONDUCT — cross-appeal — whether joint venturer engaged in misleading or deceptive conduct by failing to disclose negotiations for production of further series of television program, The Checkout — whether reasonable expectation of disclosure — whether execution of Share Sale Agreement induced by misleading or deceptive conduct — whether rescission of Share Sale Agreement an appropriate remedy COSTS — application for leave to appeal — Calderbank offers — whether primary judge erred in not awarding costs on indemnity basis — whether respondents would have been in a better position if they had accepted offer — circumstances in which costs discretion re-exercised on appeal DEFAMATION — application for leave to appeal — whether primary judge erred in application of test for defence of qualified privilege — whether express malice established Legislation Cited: Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth)) s 237 Civil Procedure Act 2005 (NSW), s 98 Corporations Act 2001 (Cth), s 461(1)(k) Defamation Act 2005 (NSW) Evidence Act 1995 (NSW), ss 64(3), 69, 136 Parliamentary Privileges Act 1987 (Cth), s 16 Supreme Court Act 1970 (NSW), s 75A Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Campomar Sociedad, Ltd v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Godfrey v Henderson (1944) 44 SR (NSW) 447 Horrocks v Lowe [1975] AC 135 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; [2020] NSWCA 28 Marks v GIO Australia Holdings Limited (1998) 196 CLR 494; [1998] HCA 69 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 Onassis v Vergottis [1968] 2 Lloyds Rep 403 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53 Ratcliffe v Evans [1892] 2 QB 524 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; [1934] HCA 15 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 13) [2022] NSWSC 444. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 14) [2022] NSWSC 835 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd (No 14) [2022] NSWSC 835 Universal Cargo Carriers Corp. v Citati [1957] 2 QB 401 Watson v Foxman (1995) 49 NSWLR 315 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Wraydeh v Fairfax Media Publication Pty Limited; Wraydeh v Nationwide News Pty Ltd (2021) 105 NSWLR 254; [2021] NSWCA 153 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Category: Principal judgment Parties: Proceedings 2022/214060 CJZ Pty Ltd (First Applicant / First Cross-Respondent) Nicholas Harvey Murray (Second Applicant / Second Cross-Respondent) Giant Dwarf Pty Ltd (First Respondent / Second Cross-Appellant) Julian Francis Xavier Morrow (Second Respondent / Third Cross-Appellant) The Checkout Pty Ltd (First Cross-Appellant)