Cha v Oh

[2009] NSWDC 336

District Court of NSW|2009-12-11

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At a glance

Source facts

Court

District Court of NSW

Decision date

2009-12-11

Catchwords

TORT - defamation - interest on judgment - costs - s 48A Defamation Act 1974 (NSW) - application for costs arising from conduct of trial by second defendant - stay of proceedings pending appeal

Source

Original judgment source is linked above.

Catchwords

TORT - defamation - interest on judgment - costs - s 48A Defamation Act 1974 (NSW) - application for costs arising from conduct of trial by second defendant - stay of proceedings pending appeal

Judgment (269 paragraphs)

[1]

CITATION: Cha v Oh (No. 23) [2009] NSWDC 336

[2]

Interest: (1) Vary order (3) of my judgment dated 8 December 2009 to read: "(3) Judgment for the plaintiff for a total of $303,834.09 against each of the second, fourth and fifth defendants for each of the following publications and in each of the following sums: (a) Judgment against the second defendant for the matter complained of dated 26 January 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (b) Judgment against the second defendant for the matter complained of dated 9 February 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (c) Judgment against the second defendant for the matter complained of dated 23 February 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (d) Judgment against the second, fourth and fifth defendants for the matter complained of dated 1 March 2001 in the sum of $30,000 plus interest of $7,979.26, making a total of $37,979.26; (e) Judgment against the second, fourth and fifth defendants for the matter complained of dated 9 March 2001 in the sum of $20,000 plus interest of $5,319.51, making a total of $25,319.51; (f) Judgment against the second, fourth and fifth defendants for the matter complained of dated 16 March 2001 in the sum of $10,000 plus interest of $2,659.75, making a total of $12,659.75; (g) Judgment against the second defendant for the matter complained of dated 30 March 2001 in the sum of $50,000 plus interest of $13,298.77, making a total of $63,298.77; (h) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 1 March 2001 in the sum of $15,000 plus interest of $3,989.63, making a total of 18,989.63; (i) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 9 March 2001 in the sum of $10,000 plus interest of $2,659.75, making a total of $12,659.75; DECISION: (j) Judgment against the fourth and fifth defendants for the matter complained of in Hojudonga dated 16 March 2001 in the sum of $5,000 plus interest of $1,329.88, making a total of $6,329.88; (k) Judgment against the fourth and fifth defendants for the matters complained of in the Korean Herald dated 1, 9 and 16 March 2001 in the sum of $5,000, $3,000 and $2,000, plus interest of $1,329.88, $797.93 and $531.95 respectively, making a total of $12,659.76." Costs (1) Vary order (6) of my judgment of 8 December to provide that costs of these proceedings for the period 25 September to 12 December 2007 and for 23 March 2009 onwards are to be paid by the second defendant on an indemnity basis. (2) Otherwise dismiss the plaintiff's application for indemnity costs pursuant to s 48A. (3) I certify for representation of the plaintiff by two junior counsel. Stay of proceedings (4) The second defendant's application for a stay (including a stay in relation to legal costs) is granted, but upon compliance with the following steps: (a) The second defendant is to pay the plaintiff (or his solicitors, upon receipt of a signed Authority to Receive) the sum of $100,000.00 within twenty-eight (28) days of the date of making these orders, namely 14 December 2009; and, (b) The second defendant is to file a Holding Summons or Notice of Appeal within twenty-eight days of the date of making these orders, namely 14 December 2009; and, (c) The second defendant undertakes to the court to commence and prosecute the appeal in these proceedings expeditiously. (5) In the event of any failure to comply with any of the above steps, the plaintiff has liberty to apply on 2 days notice to have the stay revoked. (6) The fourth defendant's application for a stay is granted, including a stay of any claim for legal costs.

[5]

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Andrews v Herald & Weekly Times (Supreme Court of NSW, Begg J, 11 December 1978, unreported) Andrews v John Fairfax & Sons Pty Ltd [1979] 2 NSWLR 184 AON Risk Services Australia Limited v Australian National University [2009] HCA 27 Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported) Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 Cha v Oh (No. 21) [2009] NSWDC 130 Cha v Oh (No. 22) (Part 1) [2009] NSWDC 299 Cooper v Whittingham (1880) 15 Ch D 501 Coull v Nationwide News Pty Ltd [2008] NTCA 10 Cropper v Smith (1884) 26 Ch D 700 Dare v Pulham (1982) 148 CLR 658 Davis v Nationwide News Pty Ltd [2008] NSWSC 946 Dering v Uris [1964] 2 QB 669 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Evatt v Australian Consolidated Press (1969) 90 WN (NSW) (Pt 1) 384 Goldschmidt v Constable & Co [1937] 4 All ER 293 Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 Hartley v Nationwide News Pty Ltd (Supreme Court of NSW, 4 May 1995, unreported) CASES CITED: Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 861 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 Jones v Sutton (No 2) [2005] NSWCA 203 Jones v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Badgery-Parker J, 10 April 1992, unreported) Ketteman v Hansel Properties Ltd [1987] AC 189 Lee v Cha [2008] NSWCA 13 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McGaw v Channel 7 Sydney Pty Ltd [2006] NSWSC 1270 Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 501 Morgan v Wallis (1907) 33 TLR 495 Packer v Meagher [1984] 3 NSWLR 486 Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Tedeschi v Franklins Ltd (Supreme Court of NSW, Levine J, 23 September 1994, unreported) The State of Queensland & Ors v J L Holdings (1997) 189 CLR 146 Waterhouse v Broadcasting Station 2GB Pty Ltd (Supreme Court of NSW, Hunt J, 20 October 1986, unreported) Webster & Thompson v Coles Myer Ltd (No 2) [2009] NSWDC 128 Williams v Ward (1886) 55 LJQB 556 Zian Fu v Kiem Dang Investments Pty Ltd [2009] NSWCA 380 Zierenberg v Labouchere [1893] 2 QB 183

[195]

[132] After further attempts by the defendants to particularise misappropriation on 27 August and 2 October, Mr Wheelhouse SC finally provided a list of 23 allegations of misappropriation, described as a reduced list, as follows: 1. The plaintiff drew cheques totalling $40,526.50 with one signatory contrary to Credit Union "directions" for there to be two signatories. This claim was only faintly pressed in the defendants' written submissions. 2. The plaintiff withdrew a cheque for $20,000 on 21 August 2000 without supporting documentation or a second signature. (The allegation of misappropriation concerning this cheque was changed to assert it was associated with the Joon Kim loan). 3. The plaintiff withdrew a cash cheque for $2,000 on 9 February 2000 - see 1 above. 4. The plaintiff withdrew a cash cheque for $2,300 on 14 August 2000 - see 1 above. 5. The plaintiff misappropriated $63,023.29 in cash donations as particularised in the particulars of 2 October 2007. 6. The plaintiff failed to pay into the bank cash donations totalling $96,133.00 7. The plaintiff misappropriated the donation of $200 by Wang Dae Po. 8. The plaintiff misappropriated the donation of $500 by the Korean Veterans Association. 9. The plaintiff misappropriated Mrs Kim's donation of $5,000 by using this money for Sports Council purposes. 10. The plaintiff misappropriated the Korea Telecom donation of $3,000 by using this money for Sports Council purposes. 11. The plaintiff misappropriated $3,000 cash given to him by the seventh defendant. 12. The plaintiff misappropriated a donation by Won Kang of $1,000. 13. The plaintiff misappropriated a donation by Patrick Lee of $500. 14. The plaintiff misappropriated for his own use and falsely claimed reimbursements for $10,459.00. The list of items consists largely of dinners after committee meetings, including a dinner for the second defendant. 15. The plaintiff misappropriated to his own use money to fund Sports Council trips totaling $24,624.31 and $USD1,000. 16. The plaintiff misappropriated money by repaying loans to the Sports Council and Korean Amateur Sports Association totaling $30,810.71. 17. The plaintiff falsely claimed CFM telephone reimbursements of $1,379.13. 18. The plaintiff falsely claimed $28,276.37 out of the claim he brought for reimbursement of $71,423. 19. The plaintiff made three false claims of $1,000, $2,200 and $2,788 for Korean flags, totaling $5.988.30. 20. The plaintiff misappropriated $27,540 of the donation by SK Securities. 21. The plaintiff misappropriated $90,351.77 by using this money for purposes other than Committee purposes. 22. The plaintiff misappropriated $43,591.33 by not including these sums in the list of donations published in the newspaper. [133] Mr Wheelhouse SC did not add these up for me, but the total is $504,634.71 plus $US1,000.

Cha v Oh

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Judgment (269 paragraphs)

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Cases Cited (21)