Awad v ISPT Pty Limited and Jones Lang LaSalle (NSW) Pty Limited and Glad Cleaning Services Pty Limited (No 2)

In the case of Awad v ISPT Pty Limited and Jones Lang LaSalle (NSW) Pty Limited and Glad Cleaning Services Pty Limited (No 2), the plaintiff sought damages against the defendants for various claims, including breach of contract and negligence. The first defendant, ISPT Pty Limited, made a Calderbank offer of compromise, which was not accepted by the plaintiff. The first defendant sought indemnity costs against the plaintiff for the unreasonable refusal of the offer. The primary issue before the court was whether the plaintiff's refusal to accept the Calderbank offer was unreasonable, particularly in light of the fact that exculpatory evidence in relation to the first defendant was only produced on 15 October 2014, after the offer had lapsed on 16 July 2014.

The court examined the circumstances surrounding the offer and the subsequent production of the exculpatory evidence. It was noted that the plaintiff's non-acceptance of the offer could not be considered unreasonable until the exculpatory material was produced. The court found that the first defendant was not liable on the principal claim, and the evidence produced after the offer lapsed materially exculpated the first defendant. The court held that since the plaintiff's non-acceptance of the offer could not be deemed unreasonable until the exculpatory material was produced, the plaintiff's refusal was not unreasonable.

Consequently, the first defendant's application for indemnity costs against the plaintiff was dismissed. The court determined that the plaintiff's refusal to accept the Calderbank offer was not unreasonable given the timing of the production of the exculpatory evidence. The court's decision highlights the importance of the timing of evidence production in relation to Calderbank offers and the assessment of reasonableness in such circumstances. The orders of the court reflected its findings, and the first defendant's application for indemnity costs against the plaintiff was refused.