Dean v Stockland Property Management Pty Ltd (No 2)

The appeal concerned an application by the appellant, Dean, for the costs of an appeal against the respondents, Stockland Property Management Pty Ltd and others. The core of the dispute revolved around an offer to compromise the appeal made by the respondents, which the appellant rejected. The appeal was heard by Giles JA, Handley AJA, and Whealy J.

The primary legal issues before the court were whether the respondents' offer to compromise the appeal constituted a "true compromise" for the purposes of costs orders, whether the offer was valid under Rule 20.26(2) of the Uniform Civil Procedure Rules (UCPR) which requires offers to be exclusive of costs, and whether the offer could be considered a *Calderbank* offer. The court also considered whether the first respondent's entitlement to contractual indemnity from the second respondent affected its position regarding costs, and whether the second respondent was precluded from accepting the offer due to the court's findings under Rule 51.53. Finally, the court examined whether the respondents' positions were so untenable as to enliven the court's general discretion regarding costs.

The court found that the offer to compromise, which proposed a new trial with each party to bear their own costs of the appeal, was a true compromise. However, it was deemed invalid under UCPR Rule 20.26(2) because it was not exclusive of costs. The court noted that the rationale behind Rule 20.26(2) is to ensure clarity and avoid ambiguity in settlement offers. The court further held that the offer did not operate as a *Calderbank* offer because the intention to do so was not clearly manifested. The court also determined that the first respondent's potential contractual indemnity from the second respondent was irrelevant to the costs order as between the appellant and the first respondent, and that the second respondent was not prevented from accepting the offer. The court concluded that the respondents' positions were not untenable, and therefore their general discretion regarding costs was not enlivened.

The court declined to vary the previously made costs order and ordered that the appellant pay the respondents' costs of the costs application.