Lowe v Lowe (No 3)

The case of Lowe v Lowe (No 3) was heard in the Supreme Court of New South Wales. The dispute centred around the allocation of costs in the context of a property settlement. The plaintiff sought a declaration regarding the ownership of a property, along with an order for costs. The defendant, in response, made an offer to settle the proceedings before they began and again before the hearing. Both offers were made under Calderbank principles, which pertain to offers to settle before the commencement of proceedings. The plaintiff ultimately received a judgment for a lesser amount than both offers, prompting the court to consider the appropriateness of the Calderbank analysis in light of the overriding purpose of the Civil Procedure Act 2005 (NSW).

The court had to decide whether the plaintiff was entitled to costs based on the offers to settle, and if so, to what extent. The issues included the applicability of Calderbank offers in this context and the implications of the overriding purpose as outlined in the Civil Procedure Act 2005 (NSW). Specifically, the court needed to assess whether the plaintiff's recovery was less than what was offered, and if the Calderbank offer had any bearing on the costs awarded. The overriding purpose of the Act, which mandates that the parties bear their own costs unless otherwise provided, also needed to be considered in the context of these offers.

The court held that the Calderbank offers, while relevant, were not determinative of the costs outcome. It found that the overriding purpose of the Civil Procedure Act 2005 (NSW) meant that the plaintiff was not entitled to an order for costs. The court noted that the plaintiff's recovery was less than the offers made, but this alone did not warrant a costs order in favour of the plaintiff. The court observed that the Calderbank analysis should be approached with caution, particularly in light of the overriding purpose which places a significant emphasis on the actual outcome of the proceedings. Ultimately, the court ruled that the plaintiff was not entitled to an order for costs, aligning with the overriding purpose of the Act.

No further orders were made by the court. The judgment clarified the limited role of Calderbank offers in the context of cost allocations and reinforced the principle that the overriding purpose of the Civil Procedure Act 2005 (NSW) is a critical consideration in determining costs.