Calderbank offers made before action, including in earlier proceedings on the same cause of action, are relevant to indemnity costs applications and should be given as much or more weight than offers made during pending proceedings. The size of the claim and the risk that litigation costs will be disproportionate are relevant factors in assessing whether rejection of a Calderbank offer was unreasonable. The obligations under ss 56 and 60 of the Civil Procedure Act 2005 (NSW) reinforce the court's willingness to order indemnity costs where modest claims are litigated disproportionately.
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