Nitin Pandey Pty Ltd v Curtin Chambers Pty Ltd, in the matter of Curtin Chambers Pty Ltd (No 2)

Nitin Pandey Pty Ltd v Curtin Chambers Pty Ltd, in the matter of Curtin Chambers Pty Ltd (No 2) was a case before the Federal Court of Australia, where the Tam parties sought an indemnity costs order based on the non-acceptance of their Calderbank offers. The Tam parties made two offers to resolve the dispute, which included terms not achievable through the court proceeding, such as geographical restraints on Dr Nitin Pandey's dental practice and the transfer of shares and units for minimal value. The plaintiffs did not accept these offers, and the Tam parties sought indemnity costs as a result.

The court had to decide whether the non-acceptance of the Tam parties' offers was unreasonable, considering the developed principles of indemnity costs following Calderbank v Calderbank. The court noted that while commercial negotiations often include terms unachievable in court, the principles require an offeror to take a considered approach to the terms of an offer. The court also had to compare the position of the offeree if the offer had been accepted with the potential outcomes available in the proceeding.

In this case, the court found that the offers were not commensurate with the relief available in the proceeding, and therefore, the court could not assess the reasonableness of the non-acceptance of the offers. The court dismissed the application for indemnity costs and ordered the plaintiffs to pay the Tam parties' costs on a party and party basis, except for the costs of the present application, which were to be borne by the Tam parties.

This case highlights the importance of carefully considering the terms of Calderbank offers and the need for offerors to take a considered approach when making offers in commercial disputes. The court's decision also emphasises that the assessment of reasonableness in the context of indemnity costs applications depends on the comparability of the offer's terms to the relief available in the proceeding.