Mallegowda v Sood (No. 7) [2019] NSWDC 252

District Court New South Wales

Medium Neutral Citation: Mallegowda v Sood (No. 7) [2019] NSWDC 252 Hearing dates: Written submissions, 11 April to 9 May 2019 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The second defendant's application for damages is refused. (2) The application by the defendants/cross-claimant for indemnity costs for the whole of the proceedings is refused. (3) By way of variation of order 3 of the orders of 29 June 2018, the plaintiff is to pay the costs charged by all the expert witnesses, including their report fees, witness expenses and any other incidental fees which are to be paid in full for all such work carried out after 12 July 2013. (4) By way of variation of order 3 of the orders of 29 June 2018, the plaintiff is to pay the defendants'/cross-claimant's reasonable disbursements as litigants in person, on the ordinary basis, for the conduct of the trial (including reasonable preparation costs) on the following trial dates: 2, 3, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24 and 25 May 2016; 24 August 2016; 1 June 2017; 9, 10 and 11 August 2017; 26 October 2017; 1 December 2017; 9 February and 29 June 2018 and their reasonable disbursements in the making of this application for costs. (5) By way of variation of order 3 of the orders of 29 June 2018, all costs orders in these proceedings in favour of the plaintiff/cross-defendant are vacated. (6) Order 5 of the orders of 29 June 2018 for the plaintiff to pay the cross-claimant's costs of the cross-claim on the ordinary basis as well as the cross-claimant's reasonable disbursements in relation to the cross-claim is confirmed, but with the restriction that these costs run from 12 July 2013 and are restricted to the costs of retaining the experts and identifying the publication issues set out in the cross-claim for the trial. (7) Pursuant to UCPR r 20.14, I refer the determination of these reasonable disbursements and legal costs (and disbursements) to a costs assessor agreed upon by the parties (or, in default of agreement, by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW) for inquiry and report by the costs assessor on the costs questions arising from these proceedings, including but not limited to: (a) An assessment, on the ordinary basis, of the defendants' reasonable disbursements for the trial on the dates above (including reasonable disbursements in relation to preparation of the trial); (b) An assessment of the disbursements and entitlements of the expert witnesses as well as of the defendants as for the retaining and briefing of these experts both by the litigants in person and of their solicitors for the period from the filing of the defence on 12 July 2013; (c) Any other issue germane to the assessment of these costs, such as the costs payable by the parties for the assessment. (8) Mr Bellach is to advise the court as well as the parties of any issues in relation to the costs of the referral, including but not limited to the payment of referral fees in advance. (9) Liberty to apply in relation to the implementation of the orders set out above. Catchwords: COSTS – application for indemnity costs by defendants and cross-claimant – whether offers of compromise and Calderbank offers bettered – whether plaintiff's denial of publication and conduct of the trial warranted special costs orders – application for plaintiff for orders that each party pay his own costs by reason of the conduct of the trial by the defendants and cross-claimant – application for indemnity costs refused – orders for the plaintiff to pay certain of the costs and disbursements on an issue by issue basis - method for assessment of costs where parties all litigants in person – referral pursuant to UCPR r 20.14 I to a costs assessor agreed upon by the parties (or, in default of agreement, by Mr B Bellach, the Manager, Costs Assessment, Supreme Court of NSW) for assessment of costs and disbursements in accordance with the orders made in these proceedings Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), s 139K Civil Procedure Act 2005 (NSW), ss 56 – 62 Defamation Act 1974 (NSW), ss 7A and 48A Defamation Act 2005 (NSW), s 40 Defamation Act 2006 (NT), s 37 Defamation Act 2005 (Qld), s 40 Defamation Act 2005 (SA), s 38 Defamation Act 2005 (Tas), s 40 Defamation Act 2005 (Vic), s 40 Defamation Act 2005 (WA), s 40 Uniform Civil Procedure Rules 2005 (NSW), rr 7.3, 20.14, 20.26, 20.27, 42.1 and 42.13A Cases Cited: Attard v James Legal Pty Ltd [2010] NSWCA 311 Barnes v Forty Two International Pty Limited (No 2) [2015] FCAFC 19 Black v Lipovac (1998) 217 ALR 386; [1998] FCA 699 Cachia v Haines (1994) 179 CLR 403 CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112 David Syme & Co v Hore-Lacy [2000] VSCA 24 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298 Johnston v Nationwide News Pty Ltd [2005] NSWCA 17 Jones v Sutton (No 2) [2005] NSWCA 203 Ludwig v The Public Trustee [2008] NSWCA 115 Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd [1994] FCA 302 Mallegowda v Sood [2013] NSWDC 97 Mallegowda v Sood (No 2) [2014] NSWDC 216 Mallegowda v Sood (No. 3) [2015] NSWDC 14 Mallegowda v Sood (No 4) [2016] NSWDC 88 Mallegowda v Sood (No 5) [2017] NSWDC 470 Mallegowda v Sood (No. 6) [2018] NSWDC 281 Mallegowda v Sood [2019] NSWCA 37 Newell; Muriniti v De Costi [2018] NSWCA 49 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558 Prothonotary of Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087 Rush v Nationwide News Pty Ltd [2018] FCA 357 Stockland (Constructors) Pty Ltd v Darryl I Coombs Pty Ltd [2004] NSWSC 333 Stokes v Ragless [2019] SASCFC 31 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 Tilden v Gregg [2015] NSWCA 164 von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172 Webb v Bloch (1928) 41 CLR 331 Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Yu v Cao (2016) 91 NSWLR 190 Texts Cited: P. Taylor SC, Justice G. Bellew, M. Meek SC, Dr E. Elms OAM, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis, Australia) Category: Costs Parties: Plaintiff/Cross-Defendant: Shashikanth Mallegowda First Defendant/Cross-Claimant: Amit Sood Second Defendant: Naveen Lingaiah Representation: Plaintiff/Cross-Defendant: In person First Defendant/Cross-Claimant: In person Second Defendant: In person File Number(s): 2012/352080 Publication restriction: None