Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2)

The case of *Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2)* concerned an application by the respondent to vary a costs order previously made in favour of the appellant. The appeal court, comprising McColl and Gleeson JJA and Sackville AJA, considered the validity of an offer of compromise made by the respondent.

The central legal issues were whether the respondent's offer of compromise was invalidated by non-compliance with Uniform Civil Procedure Rules (UCPR) 20.26(2), specifically regarding the absence of a specified period for acceptance, and whether the offer, proposing "no order as to costs," constituted a genuine offer of compromise for the purposes of UCPR 42.15A. The court also considered the statutory interpretation of UCPR 20.26(2) and its purpose in relation to the validity of offers made in breach of its provisions.

The court reasoned that UCPR 20.26(2)(d) requires an offer to bear a statement to the effect that it is made in accordance with the rules, and UCPR 20.26(2)(f) requires the offer to specify the period within which it is open for acceptance. The offer in question failed to specify a period for acceptance. However, the court noted that UCPR 20.26(3)(a)(i) permits an offer to propose a judgment in favour of the defendant with "no order as to costs," which was the nature of the offer made. The court concluded that the purpose of UCPR 20.26(2) was not to render an offer invalid for a breach of its requirements, but rather to ensure clarity and certainty in the compromise process. The court found that the offer, despite the omission, was a genuine offer of compromise and that the respondent was entitled to rely on UCPR 42.15A.

The respondent's application to vary the costs order made in *Leach (No 1)* was dismissed, with the respondent ordered to pay the appellant's costs of the application.