Balzola v Passas (No 2) [2020] NSWSC 1200

“Worth the ‘powder and shot’?”

___

P sued D1 and D2 claiming statements made in a meeting were defamatory.

P succeeded against D1 and failed against D2.

Damages against D1 were modest - the sum of $11K: [6]

Thought P raised the issue of delay, the Court found P should pay D2’s costs, costs following the event: [15]

The P’s failure to accept an offer made jointly on behalf of D1 and D2 did not elevate D2’s costs order to costs on the indemnity basis: [17]

Having been successful against D1, P pressed for costs against her on the indemnity basis.

P failed. An offer, which D1 did not accept, required a wide-ranging apology and did not provide for a “clean exit” from the litigation: [19]

The Court found D1 should only pay a proportion of the successful P’s costs because: (i) the very modest claim raised a proportionality issue, (ii) the P was only partially successful, having lost on more of the claim than he won, and (iii) D1 ought to be quarantined from paying legal costs relation to P’s unsuccessful pursuit of D2: [25]

The Court queried whether the proceedings were worth “powder and shot” (i.e. whether the small claim justified the legal costs) and considered it appropriate that D1 pay only two thirds of P’s costs: [29]