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ARTICLE · 10 JULY 2024

Making A Calderbank Offer: Things To Keep In Mind

Vincent Young
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If you have ever litigated, you may have received a Calderbank Offer. The Calderbank Offer may have prompted you to question whether a bad settlement is better than pursuing a costly trial and the risks of losing the case and paying costs on an indemnity basis.

AustraliaReal Estate and Construction
Brett Vincent
Brett Vincent
Luis Garzon
Luis Garzon

If you have ever litigated, you may have received a Calderbank Offer. The Calderbank Offer may have prompted you to question whether a bad settlement is better than pursuing a costly trial and the risks of losing the case and paying costs on an indemnity basis. The judgment in Metricon Homes Pty Ltd as trustee for Metricon Homes Unit Trust v Lipari (No 2) [2024] NSWSC 684 provides some crucial lessons for litigants who are considering accepting a Calderbank Offer or are planning to make a Calderbank Offer to a another party.

Calderbank Offer

Following the principles set out in the United Kingdom Court of Appeal decision of Calderbank v Calderbank [1975] 3 All ER 333, where a Calderbank Offer is unreasonably rejected by the offeree who subsequently obtains a less favourable result than the Calderbank Offer, the offeror may rely on the Calderbank Offer to seek recovery of its legal costs on an indemnity basis.

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