Hood v Down Under Enterprises International Pty Limited

In *Hood v Down Under Enterprises International Pty Limited*, Gageler and Steward JJ of the High Court of Australia considered an application to amend costs orders previously made in favour of the respondents. The applicant sought to argue that their failure to engage with a *Calderbank* offer made by the respondents was not unreasonable, and that the *Calderbank* offer was still open for acceptance at the time the application for special leave was instituted or before significant costs were incurred. The core of the applicant's submission was that the existing costs orders, which directed the applicant to pay the respondents' costs, should be amended to reflect an indemnity basis for those costs.

The primary legal issue before the Court was whether the applicant's conduct in not accepting the respondents' *Calderbank* offer constituted unreasonable behaviour, thereby justifying an award of costs on an indemnity basis. This required the Court to determine the reasonableness of the applicant's decision not to engage with the offer, considering the timing of the offer in relation to the institution of the special leave application and the incurrence of substantial costs by the respondents. The Court also had to consider the meaning and effect of the term "amend" in the context of the application to alter the existing costs orders.

The Court dismissed the applications. While the specific reasoning for dismissing the applications is not detailed in the provided text, the outcome indicates that the Court was not persuaded by the applicant's arguments regarding the unreasonableness of their failure to engage with the *Calderbank* offer or the timing of its availability. Consequently, the original costs orders in favour of the respondents were upheld, and no amendment was made to award costs on an indemnity basis.