Livin the Dream Pty Ltd v Attorney-General (No 2)

The case before the court involved Livin the Dream Pty Ltd, the applicant, and the Attorney-General, along with two other respondents, the third and fourth respondents. The dispute centred around an application by the applicant, which was dismissed. Notably, five days before the hearing of this application, the third and fourth respondents extended a settlement offer under Calderbank. This offer provided the applicant with a two-day window to respond. The core legal issues revolved around whether it was unreasonable for the applicant not to accept the settlement offer and if, as a result, the third and fourth respondents were entitled to indemnity costs.

In examining these issues, the court considered the circumstances under which the Calderbank offer was made and the applicant's response, or lack thereof. The court analysed the reasonableness of the applicant's decision not to accept the offer and the potential implications for costs under the Uniform Civil Procedure Rules. It was determined that the offer was made in good faith and under circumstances that provided the applicant with a reasonable opportunity to consider and respond to it. The applicant's decision not to engage with the offer was deemed unreasonable, leading to the conclusion that the third and fourth respondents were entitled to indemnity costs.

Consequently, the court ruled that the applicant must bear the costs of the third and fourth respondents associated with the application, on the standard basis until 20 September 2024, and on the indemnity basis thereafter. This decision underscores the importance of considering and responding appropriately to settlement offers, particularly those made under Calderbank, and the potential consequences for parties that fail to do so.