Antov v Bokan (No 3)

In *Antov v Bokan (No 3)*, the New South Wales Court of Appeal considered an application to vary a costs order made on 18 October 2019. The appeal concerned the appropriate basis for awarding costs, specifically in light of a *Calderbank* letter.

The central legal issue before the Court of Appeal was whether the costs order previously made should be varied to reflect the terms of a *Calderbank* offer made by the appellant. The court was required to determine whether the appellant's offer to settle was more favourable to the first respondent than the ultimate outcome of the appeal, and if so, what impact this should have on the costs awarded.

The Court of Appeal reasoned that the appellant's *Calderbank* letter, dated 24 May 2019, constituted an offer to settle the appeal. By comparing the terms of this offer with the final outcome of the appeal, the court determined that the offer was more advantageous to the first respondent than the judgment ultimately obtained. Applying the principle that a party who makes a reasonable offer to settle which is rejected, and subsequently obtains a less favourable outcome, may be entitled to an order for costs on an indemnity basis from the date of the offer, the court decided to vary the original costs order.

Consequently, the Court of Appeal varied the order made on 18 October 2019, ordering the appellant to pay the first respondent’s costs of the appeal on the ordinary basis until 24 May 2019, and on an indemnity basis thereafter.