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calderbank [2013/01/06 15:45]
steve [NSW]
calderbank [2017/07/30 18:00] (current)
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     * they put significant pressure on a party receiving such an offer to consider the strengths and weakness of their case.     * they put significant pressure on a party receiving such an offer to consider the strengths and weakness of their case.
 ===== NSW ===== ===== NSW =====
-  * [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWSC/​2011/​685.html|The State of NSW v UXC Limited (No 2)]](([2011] NSWSC 685)), Ball J+  * [[The State of NSW v UXC|The State of NSW v UXC Limited (No 2)]](([2011] NSWSC 685)), Ball J
     * Expert Determination upheld     * Expert Determination upheld
     * The defendant pay the plaintiff'​s costs of the proceedings (including the costs of the cross-summons) on the ordinary basis.     * The defendant pay the plaintiff'​s costs of the proceedings (including the costs of the cross-summons) on the ordinary basis.
-    * There is no dispute that the court can take into account the offer of compromise in determining an appropriate order in relation to costs in accordance with the principles that have their genesis in the decision of Calderbank v Calderbank (([1975] 3 All ER 333; 3 WLR 586.)) +    * There is no dispute that the court can take into account the offer of compromise in determining an appropriate order in relation to costs in accordance with the principles that have their genesis in the decision of [[Calderbank v Calderbank]] (([1975] 3 All ER 333; 3 WLR 586.)) 
-    * According to those principles, the court may, in the exercise of its discretion, make a costs order in favour of a party who has made an offer of compromise that is more favourable than the order the party would normally obtain if that party can establish that the offer represented a genuine compromise of the dispute and that it was unreasonable for the offeree to have rejected it ((see [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWCA/​2008/​117.html|Commonwealth of Australia v Gretton]] [2008] NSWCA 117 at [38] per Beazley JA; [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWCA/​2003/​258.html|Jones v Bradley (No 2)]] [2003] NSWCA 258 at [8] per Meagher, Beazley and Santow JJA.)) ​+    * According to those principles, the court may, in the exercise of its discretion, make a costs order in favour of a party who has made an offer of compromise that is more favourable than the order the party would normally obtain if that party can establish that the offer represented a genuine compromise of the dispute and that it was unreasonable for the offeree to have rejected it ((see [[Commonwealth of Australia v Gretton|Commonwealth of Australia v Gretton]] [2008] NSWCA 117 at [38] per Beazley JA; [[Jones v Bradley|Jones v Bradley (No 2)]] [2003] NSWCA 258 at [8] per Meagher, Beazley and Santow JJA.)) ​
     * In my opinion, BDM's offer did not represent a genuine offer of compromise. ​     * In my opinion, BDM's offer did not represent a genuine offer of compromise. ​
     * The only element of compromise it involved was foregoing a small amount of interest and its own legal costs. ​     * The only element of compromise it involved was foregoing a small amount of interest and its own legal costs. ​
-    * In some cases, having regard to the strength of the plaintiff'​s case, an offer to forego interest and legal costs may be a genuine offer of compromise. ((see [[http://​www.austlii.edu.au/​au/​cases/​nsw/​NSWCA/​2004/​227.html|Manly Council v Byrne (No 2)]] [2004] NSWCA 227.))+    * In some cases, having regard to the strength of the plaintiff'​s case, an offer to forego interest and legal costs may be a genuine offer of compromise. ((see [[Manly Council v Byrne|Manly Council v Byrne (No 2)]] [2004] NSWCA 227.))
     * However, I do not think it represents a genuine offer of compromise in this case.      * However, I do not think it represents a genuine offer of compromise in this case. 
     * In my opinion, it was open to UXC to argue that something had gone wrong with the drafting of the disputed clause and that, in those circumstances,​ the court should seek to find elsewhere in the contract the amount to which the disputed clause referred. ​     * In my opinion, it was open to UXC to argue that something had gone wrong with the drafting of the disputed clause and that, in those circumstances,​ the court should seek to find elsewhere in the contract the amount to which the disputed clause referred. ​
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     * Although I rejected UXC's submissions,​ I do not think that BDM's case was so strong that the offer it made represented a genuine compromise of it.      * Although I rejected UXC's submissions,​ I do not think that BDM's case was so strong that the offer it made represented a genuine compromise of it. 
     * In addition, I think it was reasonable of UXC to reject that offer in circumstances where it believed that the case being advanced by BDM was one which ultimately was not accepted by the court     * In addition, I think it was reasonable of UXC to reject that offer in circumstances where it believed that the case being advanced by BDM was one which ultimately was not accepted by the court
-  * Maitland Hospital v Fisher No 2(((1992) 27 NSWLR 721)), Kirby P, Mahoney JA and Samuels A-JA+  * [[Maitland Hospital v Fisher|Maitland Hospital v Fisher No 2]](((1992) 27 NSWLR 721)), Kirby P, Mahoney JA and Samuels A-JA
     *  The objects of the rule((the Court here was discussing the relevant Court rule but the principles are equally applicable to Calderbank offers)) include:     *  The objects of the rule((the Court here was discussing the relevant Court rule but the principles are equally applicable to Calderbank offers)) include:
        * To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff'​s real claim which can be placed before its opponent without risk that its “bottom line” will be revealed to the court;        * To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff'​s real claim which can be placed before its opponent without risk that its “bottom line” will be revealed to the court;
        * To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary,​ having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and         * To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary,​ having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and 
        * To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances,​ that party should ordinarily bear the costs of litigation.        * To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances,​ that party should ordinarily bear the costs of litigation.
-  * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​nsw/​NSWCA/​2008/​172.html|The Uniting Church v Takacs (No 2)]](( [2008] NSWCA 172))+  * [[The Uniting Church v Takacs|The Uniting Church v Takacs (No 2)]](( [2008] NSWCA 172))
 ===== VIC ===== ===== VIC =====
   * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​vic/​VSCA/​2005/​298.html|Hazeldene'​s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)]] (([2005] VSCA 298)), Warren CJ, Maxwell P, Harper AJA   * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​vic/​VSCA/​2005/​298.html|Hazeldene'​s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)]] (([2005] VSCA 298)), Warren CJ, Maxwell P, Harper AJA
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 ===== United Kingdom ===== ===== United Kingdom =====
   * Calderbank v Calderbank (([1975] 3 All ER 333))   * Calderbank v Calderbank (([1975] 3 All ER 333))
-====== See also ======+===== See also =====
   * [[Party|Party/​Party Costs]]   * [[Party|Party/​Party Costs]]
   * [[SolicitorClient|Solicitor Client Costs]]   * [[SolicitorClient|Solicitor Client Costs]]

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