COSTS — general discretion as to costs — whether the Court should order otherwise — application of r 42.14 Uniform Civil Procedure Rules 2005 (NSW) — whether offer of compromise/Calderbank offer was capable of acceptance by first defendant alone — whether judgment is no less favourable to plaintiff
Quick Take
1An offer of compromise framed as a single undifferentiated judgment against multiple defendants jointly is not capable of acceptance by one defendant alone where the defendants' interests are not aligned and the offer does not provide for unilateral acceptance or sever the claims, applying Vieira v O'Shea (No 2).
2When assessing whether a judgment is 'no less favourable to the plaintiff than the terms of the offer' under UCPR r 42.14(1), the court may adopt a net approach that accounts for the plaintiff's obligation to repay workers' compensation benefits, following Milich v The Council of the City of Canterbury (No. 3).
3Even where an offer of compromise formally complies with UCPR r 20.26(2), it may fail to engage the costs consequences in r 42.14 if it is substantively incapable of acceptance by the offeree acting alone.
