Armstrong Strategic Management and Marketing Pty Limited v Expense Reduction Analysts Group Pty Ltd (No 10)

The proceedings involved Armstrong Strategic Management and Marketing Pty Limited, which brought an action against Expense Reduction Analysts Group Pty Ltd, seeking relief for alleged breaches of contract and misleading or deceptive conduct. The matter was heard in the Federal Court of Australia. Armstrong applied for a gross sum costs order and indemnity costs following a failed Calderbank offer, as well as for the partial release of security for costs. Expense Reduction opposed these applications.

The court was required to determine whether the offer made in the Calderbank letter was capable of being accepted and, if so, whether the costs should be apportioned between the unsuccessful plaintiffs. The court also had to consider whether to grant the application for the partial release of security for costs. In addressing these issues, the court considered the terms of the Calderbank letter, the nature of the offer, and the principles governing costs orders in litigation.

The court found that the offer made in the Calderbank letter was not capable of acceptance as it did not address the merits of the case and was made without prejudice. The court held that the offer did not constitute a genuine offer capable of acceptance. Regarding the apportionment of costs between the unsuccessful plaintiffs, the court noted that the costs should not be apportioned as the unsuccessful plaintiffs were not jointly liable for the costs. The court also found that the application for the partial release of security for costs should be granted, as the applicant had demonstrated a change in circumstances that warranted such a release.

The court ordered that the application for a gross sum costs order be dismissed, that the application for indemnity costs following the Calderbank letter be dismissed, and that the application for the partial release of security for costs be granted.