Cth v Gretton

[2008] NSWCA 117

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Calderbank offers
4. › Refusal of offer where offeree receives less favourable result at trial
5. › Whether rejection of offer unreasonable
6. › Whether genuine offer of compromise
7. › Onus on offeror to establish entitlement to favourable costs order
8. › Civil Procedure Act 2005 (NSW), s 98
9. › Uniform Civil Procedure Rules 2005 (NSW), Pt 42, rr 42.1, 42.2
1. Practice and Procedure
2. › Costs
3. › Calderbank offers
4. › Offer excluding undisclosed costs liability
5. › Whether offer a genuine compromise where net value substantially reduced by undisclosed costs
6. › Whether offeror must disclose quantum of costs orders in its favour
1. Practice and Procedure
2. › Costs
3. › Calderbank offers
4. › Non-disclosure clause in offer
5. › Whether inclusion of term not obtainable by court order affects exercise of costs discretion
1. Practice and Procedure
2. › Costs
3. › Underlying principle of fairness
4. › Responsibility of parties for incurring costs
5. › Whether broader approach available beyond unreasonableness of refusal

Quick Take

A party making a Calderbank offer that excludes costs orders in its favour bears the onus of disclosing the quantum of those costs; failure to do so may undermine the genuineness of the offer and prevent the offeror from obtaining a favourable costs order. The fact that an offeree is on notice that credibility will be challenged does not, without more, make rejection of a Calderbank offer unreasonable. Where there is a wide range of possible verdicts, an offer may be reasonable yet it may not be positively unreasonable for the offeree to reject it. The broader question of whether a fairness-based approach (beyond unreasonableness) should govern costs discretion following Calderbank offers was raised but not decided, as the Commonwealth had not put its case on that basis below.