Cooper v Singh

In *Cooper v Singh*, the New South Wales Court of Appeal considered an appeal concerning costs following a *Calderbank* offer. The dispute arose from an earlier proceeding where the appellant, Mr. Cooper, had made an offer to compromise the proceedings pursuant to the principles established in *Calderbank v Calderbank*. This offer was ultimately rejected by the respondent, Ms. Singh.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in their assessment of costs, specifically in relation to the *Calderbank* offer. The appellant argued that the primary judge failed to give sufficient weight to the fact that the offer made was more favourable to the respondent than the ultimate judgment she received. This raised the question of how a court should approach the exercise of its discretion regarding costs when a *Calderbank* offer has been made and not accepted, and the subsequent judgment is less favourable to the offeree.

The Court of Appeal affirmed that the making of a *Calderbank* offer does not create an automatic entitlement to indemnity costs. Instead, it is one factor to be taken into account by the court in the exercise of its broad discretion concerning costs. The court emphasised that the primary judge's decision involved a balancing of various factors, including the terms of the offer, the conduct of the parties, and the overall justice of the case. In this instance, the Court of Appeal found no error in the primary judge's exercise of discretion and upheld the original costs order.