1A Calderbank offer that is not made under the formal offer of compromise process in UCPR Part 42 Division 3 requires the offeror to demonstrate both that the judgment obtained was no less favourable than the offer and that the offeree's rejection was unreasonable; merely bettering the offer is insufficient.
2On the facts, the plaintiff failed to establish she had bettered the Calderbank offer, and even if the outcome was no less favourable, the defendant's rejection was not unreasonable given that the arguments the plaintiff was advancing at the time of the offer did not succeed and the ultimate outcome turned on a construction point not then raised.
3The burden of establishing entitlement to indemnity costs lies on the party seeking the departure from the ordinary basis under UCPR r 42.2.
