Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd (No 2) [2026] NSWSC 1389 — Calderbank Offers & Interest On Costs — Barrister AI
Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd (No 2)
COSTS — Calderbank offers — offer inclusive of costs and interest — principles at [27]-[29] — plaintiff contractor largely succeeds against first defendant principal — obtains judgment for $8 million — but $10 million costs! — global offers are difficult to assess at the time or to compare with result — non-acceptance not unreasonable.
COSTS — interest on costs — principles at [33]-[36] — no pleading — no evidence — decline to order, including given level of costs.
COSTS — second to fourth defendants were superintendents — general consternation at trial as to why superintendents were joined — plaintiff fails in claim against the superintendents — fourth defendant seeks indemnity costs of proceedings — whether unreasonable to sue — no binding precedent in relation to tortious claim against superintendents — ‘walk away’ Calderbank offer — principles at [51]-[53] — claim not hopeless, frivolous or vexatious.
Quick Take
1A Calderbank offer expressed as a global sum inclusive of costs and interest makes it difficult for the offeree to assess what part reflects the discounted claim, and for the court to compare the offer with the result. On the facts, non-acceptance of such an offer was not shown to be unreasonable, particularly where discovery and expert conclaves had not occurred, the offeror's claimed costs were excessive and the offeror later substantially amended its case.
2An order for interest on costs under s 101(5) of the Civil Procedure Act 2005 (NSW) will ordinarily require the claim to be pleaded. It also requires evidence of the costs actually incurred and paid and of any resulting financial burden. Interest on costs may be refused where the legal costs are disproportionate, because such an order would go beyond compensating reasonable costs.
3Indemnity costs based on rejection of a 'walk away' offer generally require the claim to approach being hopeless, frivolous or vexatious. A tortious claim against contract superintendents, on which there was no binding precedent as to duty of care, did not meet that standard, although an offer to pay even a modest sum may have produced a different result.
