Brymount Pty Ltd v Cummins (No 2)

In *Brymount Pty Ltd v Cummins (No 2)*, the New South Wales Court of Appeal considered the interplay between offers of compromise made under court rules and *Calderbank* offers, particularly in relation to the entitlement to indemnity costs. The dispute concerned the appropriate basis for awarding costs following a trial and subsequent appeals.

The primary legal issues before the Court of Appeal were whether a *Calderbank* offer made before trial, but not renewed or revived between the trial and the appeal, could justify an award of indemnity costs for the appeal proceedings. The Court also had to determine the scope of its general discretion as to costs and how it applied to the specific circumstances of the case, including the timing of the *Calderbank* offer relative to the different stages of the litigation.

The Court reasoned that a *Calderbank* offer, to be effective in justifying indemnity costs for subsequent proceedings, must be kept on foot and remain a viable offer of compromise throughout those proceedings. An offer made before trial, which was not revived or renewed after the trial concluded and before the appeal commenced, could not serve as the basis for an award of indemnity costs for the appeal. The Court affirmed that while it possessed a broad discretion regarding costs, the entitlement to indemnity costs typically required a clear indication from a party that they were prepared to settle on specific terms, and that the other party had unreasonably refused those terms.

The Court ordered that the first respondent pay the appellant's costs up to specific dates on a party and party basis, and thereafter in respect of the trial and the appeal on an indemnity basis. There were no orders as to costs concerning the second respondent. The first respondent was also granted a Certificate under the *Suitors Fund Act 1951* (NSW), if entitled.