WIN Corporation Pty Ltd -v- Nine Network Australia Pty Limited

HIS HONOUR: On 28 April 2016 the Court dismissed WIN’s proceedings against Nine. See: WIN Corporation Pty Ltd v Nine Network Australia Pty Limited [2016] NSWSC 523. The parties agreed that the Court should deal with the question of costs on the papers and provided written submissions.

Nine seeks its costs on the indemnity basis based on WIN’s failure to accept a Calderbank offer which Nine made on 24 February 2016, which offered to settle the proceedings on terms that they be dismissed with each party to bear its own costs to the date of the offer. The letter set out arguments which Nine said would compel failure of the proceedings.

WIN accepts that costs should follow the event, and that Nine is prima facie entitled to its costs, but argues for some reduction in Nine’s recoverable costs principally because there was a significant amount of evidence which was either determined to be inadmissible, or was not ultimately relied upon.

In my opinion, costs should follow the event and Nine should have all its costs, but on the ordinary basis only. The relief sought was an injunction restraining breach of contract. In these circumstances, an offer for dismissal with nothing more for WIN than not having to pay Nine’s costs to the date of the offer, required capitulation on WIN’s part. WIN did not act unreasonably in declining to accept it. The arguments articulated were to my mind somewhat different to the ones which ultimately succeeded.

Generally, the Court does not apportion costs on the basis of success or failure on particular issues. This is not a case in which it is appropriate to depart from the general position and engage upon a dissection of costs on the basis of discrete issues or how particular aspects of evidence fell out. The case was economically run on both sides, all issues were in play, and Nine succeeded. Nine should therefore have its costs.

I order that WIN pay Nine’s costs of the proceedings.