Bartlett v Australia & New Zealand Banking Group Ltd (No 2)

(2016) 92 NSWLR 670; [2016] NSWCA 142

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Calderbank offers
4. › Offer requiring releases and non-disparagement promises beyond monetary payment
5. › Whether unreasonable to reject offer
6. › Whether offer involved real element of compromise or invitation to capitulate
7. › Relevance of vindication of reputation
1. Practice and Procedure
2. › Pre-judgment interest
3. › Appropriate settlement sum
4. › Whether collateral non-monetary obligations affect characterisation as 'sum offered in settlement'
5. › Whether special circumstances warrant interest after offer
6. › Vindication of reputation as special circumstance
7. › Civil Procedure Act 2005 (NSW), s 100(4), (5)
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside or varying orders after entry
4. › Whether costs order determines claim for relief
5. › Whether power exists under r 36.16(3) to vary costs order after 14 days
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Quick Take

A plaintiff's pursuit of proceedings to vindicate their reputation against unfounded allegations of serious misconduct can constitute 'special circumstances' under s 100(4) of the Civil Procedure Act 2005 (NSW), warranting pre-judgment interest for the period after an appropriate settlement sum was offered. A Calderbank offer that requires broad releases and non-disparagement promises beyond the monetary payment may be characterised as requiring capitulation rather than genuine compromise, making it reasonable for the offeree to reject the offer. Whether s 100(5) is satisfied where the offer includes collateral non-monetary obligations remains an open question.