An offer of compromise containing an uncertain GST clause — where it is unclear whether the offer covers GST on the 'earlier supply' or only on a 'discontinuance supply' — may render it impossible to determine whether a judgment is more or less favourable than the offer, thereby defeating the operation of r 26.08(3). Where the issues in dispute and the evidence to be adduced are in a state of flux at the time an offer is made, the court may exercise its discretion to 'otherwise order' under r 26.08(3) even if the rule is technically enlivened.
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