1. Calderbank Offer

The Calderbank letter does not need to follow any particular structure or layout; the Courts can consider any offer in writing in deciding the reasonableness of the parties in their willingness to settle and general approach. (a) The Supreme Court, in considering the awarding of the costs of any appeal or any application in respect of an appeal, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party or parties offering to satisfy the whole or part of that other party’s (or those other parties’) claim or counterclaim the subject of the appeal, or application. (b) The High Court, in considering the awarding of the costs of any action (other than an action in respect of a claim or counterclaim concerning which a lodgment or tender offer in lieu of lodgment may be made in accordance with ) or any application in such an action, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party or parties offering to satisfy the whole or part of that other party’s (or those other parties’) claim, counterclaim or application. (c) The High Court, in considering the awarding of the costs of any appeal from the Circuit Court, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party to the appeal offering to satisfy the whole or part of that other party’s (or those other parties’) claim or counterclaim the subject of the appeal. () Unlike with a lodgment the time allowed to serve a Calderbank letter is open, and can be done so right up to trial. The differences between Calderbank letters and lodgments So, the significant differences between a Calderbank letter and a lodgment revolve around • Timing-when they can be used, and • The degree of discretion the Courts have in relation to penalising a party, as to costs, who will not settle or is unreasonable-wide in relation to Calderbank letters, none in relation to lodgements which are not exceeded by the plaintiff’s subsequent award, if any.

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Calderbank Offer

Rule 20.26(3)(a)–(c) will permit the making of a valid offer of compromise where the offer contains specific references to costs, such as no order for costs, costs in a specified sum, costs up to a specified date, or from a specified estate or fund. Offers of compromise “inclusive of costs” remain invalid: r 20.26(2)(c). In addition, an offeree unable to assess the offer of compromise should seek further particulars or documents in accordance with the procedure set out in r 20.26(4) and (5). Where the offer of compromise makes no provision for costs, a plaintiff accepting the offer is entitled to costs on the ordinary basis up to the time when the offer is made: r 42.13A(2). Where the offer proposes judgment in favour of a defendant, the defendant is entitled to costs against the plaintiff accepting the offer from the date the offer is made: r 42.13A(3). The offer must involve a real element of compromise: Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358. In more recent cases, it has been held that an offer must involve “a real and genuine element of compromise”: The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706 at [8]; Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 at [14]; Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [9]; Barakat v Bazdarova [2012] NSWCA 140 at [51(e)]; Prosperity Advisers Pty Ltd v Secure Enterprises Pty Ltd [2012] NSWCA 192 at [108]–[109].