Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 3)

In *Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 3)*, the dispute before Leeming JA of the Court of Appeal of New South Wales concerned the appropriate basis for awarding costs following an appeal. The unsuccessful respondent, Gresham Property Investments Ltd, had made an offer to settle which was rejected by the appellants, Global Consulting Services Pty Ltd. The central question was whether Gresham's rejection of this offer was unreasonable, thereby justifying an order for indemnity costs against Gresham.

The court was required to determine whether the offer made by Gresham was a genuine offer to settle that, if accepted, would have resolved the litigation on terms more favourable to the appellants than the ultimate outcome of the appeal. This involved assessing the reasonableness of Gresham's rejection of the offer in light of the circumstances known to the parties at the time the offer was made and subsequently rejected.

Leeming JA found that Gresham's offer was not a genuine offer to settle that would have resolved the litigation on terms more favourable to the appellants than the ultimate outcome. His Honour reasoned that the offer was made in circumstances where Gresham was aware of significant weaknesses in its own position and the strength of the appellants' case. Consequently, the rejection of the offer by the appellants was not unreasonable.

Accordingly, the Court of Appeal ordered that the first respondent, Gresham, pay the appellants’ costs of the appeal from 11 August 2018 on an indemnity basis.