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ny offer. Pl won but only for $4,900 [not “derisory” awardbut little more]. Further defendant had reasonable prospects of truth defence although ultimately unsuccessful on several counts; the court found pl to be strategic liar, assaulted his wife and took her money.▪Held: Def to pay ½ of Pl’s costs. This despite special obligations in defamation cases toreach settlement.▪“I do not consider it to be incumbent on a defendant publisher in that position to makea settlement offer or suffer a costs penalty merely on the basis that it must have contemplated the possibility of losing the proceedings.”-Edwards v Endeavour Energy [and other proceedings] (No. 5)  NSWSC 68:▪“11. Costs are in the discretion of the Court and the Court has full power to determineby whom, to whom and to what extent costs are to be paid: s.98(1)Civil Procedure Act2005. Costs should follow the event unless it appears to the Court that some ordershould be made as to the whole or any part of the costs: Rule 42.1 Uniform CivilProcedure Rules 2005.”•Judicial Discretion Reigns Supreme-Gray v Richards [No 2]  HCA 47. Complex costs where both parties partially successfuland where multiple levels of decision making to assess costs on.▪The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court.The disposition whichis ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires. [French CJ, Hayne, Bell, Gageler and Keane JJ.]•Squire v Squire (No 2)  NSWCA 120 (22 May 2019)-Here is an example of a settlement offer affecting the Court’s costs determination:-“8. In the face of the appellants’ rejected Calderbank offer made by their solicitors’ email of27 October 2016, the respondent should pay their first instance costsincurred after 14 November 2016 on an indemnity basis, and their costsincurred before that date on the169Downloaded by John Cullen ([email protected])
lOMoARcPSD|3077030ordinary basis. Thosecosts are not to include anycosts thrown away by the vacation of the14 November 2016 hearing date. At the time that offer was open to be accepted the appellants’evidence had been served, enabling the respondent to assess the merits of theirclaim, and the respondent was given a week in which to do so, a sufficient period having regard to the nature of the proceeding. As to the capping of the appellants’ recoverablecosts at first instance, the Court remains of the view that they should be capped at $50,000,which allows for costsunnecessarily incurred in relation to the vacating of that first hearingdate.-9. In the absence of any Calderbank offer made in the appeal proceedings, the appellants’recoverable costsof the appeal should be assessed on the ordinary basis. The appellants’submit that those costsshould not be capped at $21,000 or at all (cf Judgment ). One reason for the difference between their costs