Freedom Development Group Pty Limited v D'Ettorre Properties Pty Limited T/as D'Ettorre Real Estate (No 2)

[2023] NSWCA 185

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise under UCPR r 20.26
5. › Walk-away offer by defendant
6. › Whether offer constituted genuine compromise
7. › Whether proceedings approached character of frivolous or vexatious
8. › Whether court should order otherwise under UCPR r 42.15A
9. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offer
5. › Whether genuine offer of compromise
6. › Whether unreasonable for plaintiff not to accept offer
7. › Reasonableness assessed at time offer made
8. › Relevance of early stage of proceedings
9. › Relevance of quantum of offer compared to claim
1. Practice and Procedure
2. › Costs
3. › Variation of costs order
4. › Power to vary under UCPR r 36.16(3A)
5. › Application within 14-day time period
6. › Finality of proceedings not a bar to application

Quick Take

'Walk away' offers of compromise do not trigger indemnity costs unless the opposing party's claim approaches the character of being frivolous or vexatious, and it may be appropriate to explain the factual basis for asserting the proceedings are hopeless.