Mackinnon v BlueScope Steel (AIS) Pty Ltd (No 2)

In *Mackinnon v BlueScope Steel (AIS) Pty Ltd (No 2)*, the Court of Appeal of New South Wales considered an application by the successful appellant for indemnity costs following an appeal. The dispute arose from the appellant's offer to compromise the proceedings by way of a *Calderbank* letter sent prior to the hearing of the appeal.

The primary legal issues before the Court were whether the *Calderbank* offer constituted a genuine offer to compromise, whether it was reasonable for the respondent to refuse that offer, and whether the conduct of the appeal by the appellant warranted an adjustment to the usual costs order. Additionally, the Court had to determine the costs of the cross-appeals, given that no decision on their merits had been made.

The Court refused the appellant's application for indemnity costs. It found that the *Calderbank* offer was not sufficiently clear or comprehensive to be considered a genuine offer to compromise the entire proceedings. Consequently, it was not unreasonable for the respondent to refuse the offer. The Court also determined that the conduct of the appeal did not justify a departure from the general rule that costs follow the event. Accordingly, the first respondent was ordered to pay the appellant's costs of the appeal, with each party bearing its own costs of the cross-appeals.