A settlement offer that does not indicate that non-acceptance will be relied on for costs purposes does not qualify as a Calderbank offer, even if it represents a genuine compromise. The marking 'without prejudice' rather than 'without prejudice except as to costs' is relevant but not determinative; the critical requirement is some indication of reliance on non-acceptance for costs purposes. The Court of Appeal has no jurisdiction to make costs orders in respect of costs assessment applications governed by the Legal Profession Uniform Law (NSW).
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