Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2)

[1999] NSWCA 133

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offers
5. › Whether refusal of offer was plainly unreasonable
6. › Whether conduct of unsuccessful party justified departure from ordinary costs rule
1. Practice and Procedure
2. › Costs
3. › Offers of compromise
4. › Offers made otherwise than in accordance with Supreme Court Rules
5. › Distinction between formal offers under SCR Pt 22 and Calderbank letters
6. › Onus on party seeking indemnity costs
1. Evidence
2. › Without prejudice communications
3. › Admissibility on question of costs
4. › Evidence Act 1995 (NSW), s 131(1), (2)(h)

Quick Take

A Calderbank offer does not impose on the offeree the same onus as a formal offer of compromise under SCR Pt 22; it provides no more than a prima facie position. The ordinary party and party costs rule should only be departed from where the offeree's conduct was plainly unreasonable. Under s 131(2)(h) of the Evidence Act 1995, without prejudice communications are admissible on the question of costs even if they do not take the traditional Calderbank letter form.