Fordyce v Fordham (No 2)

In *Fordyce v Fordham (No 2)*, the New South Wales Court of Appeal considered an application for costs following an unaccepted Calderbank offer. The dispute concerned whether the existence of this offer should displace an earlier order that each party bear their own costs.

The central legal issue before the Court of Appeal was the proper application of the principles governing costs when a Calderbank offer has been made and rejected. Specifically, the court had to determine whether the offer, which was more favourable to the applicant than the final judgment, warranted a departure from the usual order that each party pay their own costs.

The Court of Appeal reasoned that the purpose of a Calderbank offer is to encourage settlement by providing a basis for a costs order in favour of the offeror if the offeree fails to achieve a better outcome at trial. However, the court also recognised that the discretion to award costs remains with the court, and a Calderbank offer is only one factor to be considered. In this instance, the court found that the circumstances did not justify disturbing the initial costs order. The application for costs was therefore dismissed, with the applicant ordered to pay the respondent's costs.