CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow (No 2) [2023] NSWCA 225

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow (No 2) [2023] NSWCA 225 Hearing dates: On the papers Decision date: 25 September 2023 Before: Ward P at [1]; Mitchelmore JA at [2]; Adamson JA at [3] Decision: Proceedings 2022/214060 (1) Vary order (4) made on 20 June 2023 and, in lieu thereof, order that the first respondent/second cross-appellant and the second respondent/third cross-appellant pay the applicants'/appellants'/cross-respondents' cost of the appeal and the cross-appeal. (2) Order the respondent to pay the applicants' costs of the amended notice of motion filed on 25 July 2023. Proceedings 2022/214083 (1) Vary order (4) made on 20 June 2023 and, in lieu thereof, order the respondent to pay the applicants' costs of the appeal: (a) on the ordinary basis up to and including 6 April 2023; and (b) on an indemnity basis from 7 April 2023. (2) Make the following further order and notation in the Defamation proceedings: (7) Judgment for the defendants in the sum of $39,638.22. (8) Note that the judgment sum in order (7) above constitutes reimbursement to the defendants of the sum paid by them to the plaintiff in compliance with orders (1) and (2) made by Stevenson J on 23 June 2022, following the setting aside of those orders by this Court on 20 June 2023. (3) Order the respondent to pay the applicants' costs of the amended notice of motion filed on 25 July 2023. Catchwords: COSTS — Appeals — offer of compromise — whether applicants entitled to indemnity costs on basis of two offers — first offer made prior to applicants retaining lawyers after Defamation proceedings first commenced by respondent — second offer made before hearing of appeal — whether genuine compromise — whether respondent unreasonably failed to accept offers COSTS — Appeals — order for restitution — repayment of judgment sum Legislation Cited: Defamation Act 2005 (NSW), s 40 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15 Cases Cited: CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135 Leichhardt Municipal Council v Green [2004] NSWCA 341 Category: Costs 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)