Hunter v Roberts (No 2)

The parties to this proceeding were the applicant and the respondent. The dispute concerned an application for indemnity costs following the rejection of a Calderbank offer made by the applicant. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the respondent had acted unreasonably in refusing the applicant's Calderbank offer, which had been accompanied by written submissions detailing the applicant's very good prospects of success on appeal. This determination was crucial for deciding whether the costs of the appeal should be awarded on an indemnity basis from the date the offer was made.

The Court of Appeal reasoned that the respondent's refusal of the offer was unreasonable in the circumstances. The applicant's prospects of success were assessed as very good, and the offer was made in a manner that clearly articulated the basis for this assessment. Consequently, the Court found that the respondent ought to have accepted the offer, and therefore, the costs of the appeal should be awarded on an indemnity basis from the date the offer was made.

The Court ordered that the order for costs made on 20 May 2019 be varied to provide that the respondent pay the applicant’s costs of the appeal on the ordinary basis up to and including 24 December 2018, and thereafter, on an indemnity basis. The respondent was also ordered to pay the applicant’s costs of the motion.