Bailey v BMW Sydney Pty Limited & Anor (No. 2) [2020] NSWDC 139

Bailey v BMW Sydney Pty Limited & Anor (No. 2) [2020] NSWDC 139

It was not unreasonable for the plaintiff to reject the Calderbank offers, as they included terms not sought in the proceedings (namely, the non-disparagement and confidentiality clause); offers during mediation were privileged and inadmissible; and the email 'subject to deed' was not a complete offer capable of acceptance. Defendants are not entitled to indemnity costs.

Jurisdiction
Australia
Judgment Date
29 April 2020
Procedural Posture
Civil / Application for Indemnity Costs Order Following Judgment
Outcome
Defendants' application for indemnity costs order dismissed.
Legal Topics
['calderbank Offers' 'confidentiality in Mediation' 'indemnity Costs' 'non Disparagement Clauses' 'settlement Offers']
['costs'] ['calderbank Offers' 'confidentiality in Mediation' 'indemnity Costs' 'non Disparagement Clauses' 'settlement Offers']

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Procedural Posture

Civil / Application for Indemnity Costs Order Following Judgment

Legal Issues

  1. 1 ['Whether rejection of Calderbank offers by plaintiff was unreasonable and would justify an indemnity costs order' 'Whether settlement offers made during mediation can be relied upon in costs application' "Whether an incomplete settlement offer ('subject to deed') is capable of acceptance and entitles defendants to indemnity costs"]

Ratio Decidendi

It was not unreasonable for the plaintiff to reject the Calderbank offers, as they included terms not sought in the proceedings (namely, the non-disparagement and confidentiality clause); offers during mediation were privileged and inadmissible; and the email 'subject to deed' was not a complete offer capable of acceptance. Defendants are not entitled to indemnity costs.

Court Disposition

Defendants' application for indemnity costs order dismissed.

Orders

  • ["Dismiss the defendants' application for an indemnity costs order." "Order the defendants to pay the plaintiff's costs in relation to defendants' application for an indemnity costs order."]