Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors [2010] NSWSC 1256

Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors [2010] NSWSC 1256

The offer did not comply with UCPR r 20.26(3)(a) as it lacked requisite specificity, thus it was not an effective offer of compromise under the rules. Further, the offer was not expressed to operate as a Calderbank offer and did not clearly communicate such intention or consequences. The offer amounted to an invitation to capitulate (walk-away offer) with only a slight concession on costs, and not a genuine offer of compromise. Accordingly, there is no justification for an indemnity costs order against the plaintiffs for failure to accept the offer.

Jurisdiction
Australia
Judgment Date
27 October 2010
Procedural Posture
Civil / Final Orders and Costs Determination
Outcome
Proceedings dismissed. Plaintiffs to pay defendants' costs (on party/party basis) except for today's application, for which defendants to pay plaintiffs' costs.
Legal Topics
['costs' 'offers of Compromise' 'calderbank Offers' 'indemnity Costs']
['civil Procedure'] ['costs' 'offers of Compromise' 'calderbank Offers' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil / Final Orders and Costs Determination

Legal Issues

  1. 1 ['Whether the offer of settlement complied with UCPR as a valid offer of compromise' 'Whether the offer operated as a Calderbank offer and effect of non-acceptance' 'Whether defendants are entitled to indemnity costs based on the offer']

Ratio Decidendi

The offer did not comply with UCPR r 20.26(3)(a) as it lacked requisite specificity, thus it was not an effective offer of compromise under the rules. Further, the offer was not expressed to operate as a Calderbank offer and did not clearly communicate such intention or consequences. The offer amounted to an invitation to capitulate (walk-away offer) with only a slight concession on costs, and not a genuine offer of compromise. Accordingly, there is no justification for an indemnity costs order against the plaintiffs for failure to accept the offer.

Court Disposition

Proceedings dismissed. Plaintiffs to pay defendants' costs (on party/party basis) except for today's application, for which defendants to pay plaintiffs' costs.

Orders

  • ['Proceedings dismissed.' "Plaintiffs to pay first and second defendants' costs up to 20 June 2010 (party/party basis)." 'Order 2 of orders dated 23 January 2007 dissolved.' 'The sum of $247,000 plus any interest be released to first and second defendants or per their written direction.' '6 Forestry Bonds be...