Dean v Stockland Property Management Pty Ltd & Anor (No 2)

[2010] NSWCA 141

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise
5. › Whether offer exclusive of costs
6. › Whether valid under UCPR r 20.26(2)
7. › Uniform Civil Procedure Rules 2005 (NSW), r 20.26(2)
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offer
5. › Whether invalid offer of compromise operates as Calderbank offer
6. › Whether intention to make Calderbank offer must be manifested
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › General discretion
5. › Whether respondents' positions on appeal untenable
6. › Whether resistance to appeal without real prospects of success
1. Practice and Procedure
2. › Costs
3. › Offer of compromise
4. › Whether offer involving non-monetary relief can include costs term
5. › Whether offer a true compromise
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26(2), 42.14

Quick Take

An offer of compromise under UCPR r 20.26 that includes any costs term (even 'each party to pay its own costs') is invalid under r 20.26(2) and of no effect under the offer of compromise regime, even in non-monetary cases such as appeals seeking a new trial. Such an offer will not operate as a Calderbank offer unless the offeror expressly manifests an intention for it to do so in the event the offer is ineffective under the rules. Parties seeking to make effective offers in non-monetary appeals should either make the offer exclusive of costs or expressly state the offer is intended to operate as a Calderbank offer in the alternative.