Archer v Archer (No 2)

Archer v Archer (No 2) concerned an appeal to the New South Wales Court of Appeal regarding an award of indemnity costs. The dispute arose from an offer of compromise made by the respondent, which the appellant had failed to accept. The primary judge had awarded indemnity costs to the respondent on the basis that the offer of compromise had not been bettered by the appellant at trial.

The central legal issue before the Court of Appeal was whether the offer of compromise made by the respondent was valid and therefore capable of forming the basis for an award of indemnity costs. Specifically, the court had to determine if the offer was sufficiently clear and certain to be accepted by the appellant.

The Court of Appeal held that the offer of compromise was not valid because it was ambiguous and lacked the necessary certainty to be capable of acceptance. The court reasoned that for an offer to be effective in triggering indemnity costs, it must be clear and unambiguous, leaving no room for doubt as to its terms. As the offer was found to be deficient in this regard, it could not serve as a basis for ordering indemnity costs.

The appeal was allowed, and the order for indemnity costs made by the primary judge was set aside.