Chief Commissioner of State Revenue v Platinum Investments Management Ltd (No 2)

The Court of Appeal of New South Wales considered an application by the Chief Commissioner of State Revenue to vary an earlier order of the Court concerning a judgment of Gzell J. The dispute arose from the Chief Commissioner's refusal of a *Calderbank* offer made by Platinum Investments Management Ltd.

The primary legal issue before the Court was whether the Chief Commissioner's refusal of Platinum Investments Management Ltd's *Calderbank* offer was unreasonable, thereby justifying an award of indemnity costs. The Court also had to determine the appropriate orders to be made in light of the application to vary the previous order.

The Court reasoned that the reasonableness of refusing a *Calderbank* offer is assessed by reference to the circumstances at the time of refusal. In this instance, the Chief Commissioner's refusal was not considered unreasonable, particularly as there was no reference to other proceedings between the same parties that might have influenced the decision. Consequently, the Court declined to award indemnity costs.

The Court ordered that the second order made by the Court on 10 March 2010 be varied to set aside the judgment of Gzell J of 2 February 2010. The notice of motion of 10 March 2011 was otherwise dismissed, and the applicant, the Chief Commissioner of State Revenue, was ordered to pay the respondent's costs of the motion.