Apostolidis & Ors v Kalenik & Ors (No 2)

[2011] VSCA 329

Victorian Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › De facto property adjustment proceedings
3. › Whether costs should reflect proportionate success
4. › Baker v Towle explained
5. › No universal rule of proportionate costs in property adjustment proceedings
6. › Property Law Act 1958 (Vic), Part IX, s 285
1. Costs
2. › Calderbank offers
3. › Whether rejection of offer unreasonable
4. › Factors relevant to assessment
5. › Prospects of success assessed at date of offer
6. › Difficulty of predicting costs consequences
1. Costs
2. › Appellate review of costs discretion
3. › Standard of review
4. › Whether identifiable error or result so unreasonable or unjust as to require substitution of discretion
1. Costs
2. › Without prejudice privilege
3. › Offer of compromise
4. › Whether court may inspect without prejudice offer after determination of liability and relief
5. › Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 26.05(2)

Quick Take

Baker v Towle does not establish a universal rule that costs in de facto property adjustment proceedings should reflect proportionate success; the degree of success and offers made are merely some of the relevant considerations within the facts and circumstances of each case. Rule 26.05(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) does not abrogate without prejudice privilege once liability and relief have been determined; a court may not inspect a without prejudice offer for the purpose of assessing costs where privilege has not been waived. A Calderbank offer conditional on third party approval is not a genuine Calderbank offer.