Lo v Russell (No 2)

[2017] VSCA 14

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Calderbank offers
4. › Whether refusal of offer unreasonable
5. › Relevance of modest discount offered
6. › Relevance of respondent's success at trial
7. › Indemnity costs refused
1. Practice and Procedure
2. › Costs
3. › Costs following successful appeal
4. › Whether party successful on appeal entitled to costs of trial
5. › Whether argument succeeded on appeal was raised at trial

Quick Take

A Calderbank offer representing only a modest discount (approximately 12%) on the offeror's claim, where there remains a live issue on which both parties have some prospect of success, may not render the offeree's refusal unreasonable even where the offeror ultimately succeeds. The fact that the offeree succeeded at trial, though later reversed on appeal, is only one factor in the assessment and does not of itself establish that refusal was reasonable. A party who considers a Calderbank offer too low should make a counter-offer rather than simply ignoring the offer.