Bartlett v Australia & New Zealand Banking Group Ltd (No 2)

The appeal concerned costs orders made by Adamson J in proceedings between the appellant, Bartlett, and the respondent, Australia & New Zealand Banking Group Ltd. The dispute revolved around an offer of compromise made by the respondent, which included not only a monetary sum but also releases and non-disparagement promises. The central question was whether this offer constituted a valid *Calderbank* offer and, if so, whether it was reasonable for the appellant to reject it.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the offer of compromise, by including conditions beyond a simple monetary payment, qualified as a *Calderbank* offer for the purposes of assessing costs. Secondly, the court had to consider whether the offer constituted an "appropriate settlement sum" under section 100(5) of the *Civil Procedure Act 2005* (NSW), and if there were any special circumstances under section 100(4) that would justify making an order for pre-judgment interest for the period after the offer was made.

The Court of Appeal found that the offer of compromise was not a valid *Calderbank* offer because it contained conditions that went beyond the mere payment of money, making it unreasonable to expect the appellant to accept it as a basis for costs. Consequently, the court determined that the offer did not meet the criteria for an "appropriate settlement sum" under section 100(5) of the *Civil Procedure Act 2005* (NSW). The court also found no special circumstances to warrant depriving the appellant of pre-judgment interest for the period after the offer was made.

The Court of Appeal ordered that the costs orders made by Adamson J on 1 December 2014 be set aside. The court also entered judgment for the appellant in the sum of $135,925, with this judgment to take effect from 7 March 2016.