Binaray Pty Ltd (ACN 119 724 211) as Trustee for the Allen Family Trust v RAMS Financial Group Pty Limited (ACN 105 207 538)

The matter between Binaray Pty Ltd as Trustee for the Allen Family Trust and RAMS Financial Group Pty Limited involved a dispute concerning a formal offer to settle made by the defendant under Chapter 9, Part 5 of the Uniform Civil Procedure Rules. The plaintiff argued that the defendant's offer was not valid as it contained non-monetary terms such as confidentiality and third-party costs assessment, which the plaintiff claimed were not allowed under the rules. The defendant sought an order that it should only pay costs from a certain date, claiming that the plaintiff should bear the costs incurred after the offer was made. The court needed to decide whether the defendant's offer complied with the rules and, if not, whether it could still be considered under the principles of Calderbank.

The court examined the defendant's offer to determine if it complied with the requirements of Part 5 of Chapter 9 of the UCPR. The plaintiff argued that the inclusion of confidentiality and third-party costs assessment rendered the offer non-compliant. The court considered the specific language of the offer, which required the plaintiff to release the defendant from all claims and provided for dismissal of the proceeding with no costs order, except for those specified. The plaintiff further argued that the costs provision was unclear and referred to a separate agreement. The court noted that while the offer contained terms not explicitly permitted by the UCPR, it was still clear and capable of being implemented without further negotiation. The court referred to Balnaves v Smith to understand the requirements for a compliant offer under the rules but did not find that the non-monetary terms invalidated the offer as a whole.

The court concluded that the offer was not compliant with the UCPR due to the inclusion of confidentiality and third-party costs assessment but could still be treated as a Calderbank offer. The court considered the defendant's submissions and found that the offer should have consequences under r 361(2) of the UCPR. The court ordered that the defendant pay interest on a specified sum up until a certain date and thereafter according to the Supreme Court scale. Additionally, the defendant was ordered to pay 75% of the plaintiff's costs of the proceedings, calculated on the standard basis. The court found that the non-compliant offer should be treated as a Calderbank offer, and the consequences for non-compliance should be applied accordingly.