Davis v Swift (No 2)

In *Davis v Swift (No 2)*, the parties were the appellant and the respondent, and the dispute concerned the assessment of costs in both the District Court proceedings and the subsequent appeal. The matter came before the Court of Appeal of New South Wales, constituted by Meagher and Leeming JJA and Adamson J.

The primary legal issues before the Court of Appeal were whether an offer of compromise made by the respondent complied with rule 20.26 of the Uniform Civil Procedure Rules (NSW) by sufficiently indicating it was inclusive of interim payments made under the *Motor Accidents Compensation Act 1999* (NSW), and whether a pre-trial *Calderbank* letter constituted a genuine offer of compromise that justified a departure from the usual rule for determining appeal costs based on the appeal's outcome.

The Court determined that the offer of compromise was not sufficiently clear in its indication that it included the interim payments, and therefore did not comply with the requirements of rule 20.26. Regarding the *Calderbank* letter, the Court found that it did not represent a genuine offer of compromise in the circumstances, and thus did not provide a basis for deviating from the ordinary principles governing the costs of an appeal.

Consequently, the Court ordered that the respondent pay the appellant’s costs in the District Court up to and including 26 April 2013, assessed on the ordinary basis. The appellant was ordered to pay the respondent’s costs in the District Court after that date, also assessed on the ordinary basis. Finally, the respondent was ordered to pay 50% of the appellant’s costs of the appeal.