Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2)

The parties to this proceeding were Noon (the applicant) and Bondi Beach Astra Retirement Village Pty Ltd (the respondent). The dispute concerned an application for indemnity costs following a successful appeal by the respondent to the Court of Appeal of New South Wales. The respondent had made an offer to settle the proceedings under the principles established in *Calderbank v Calderbank*, which the applicant rejected. Despite the applicant ultimately succeeding at first instance, the Court of Appeal overturned that decision in favour of the respondent.

The central legal issue before the Court of Appeal was whether the applicant had unreasonably rejected the respondent's *Calderbank* offer. This required the court to assess the reasonableness of the applicant's decision at the time the offer was made, without the benefit of hindsight, and in light of the subsequent appeal outcome.

The court reasoned that the reasonableness of rejecting a *Calderbank* offer is to be judged by the circumstances and knowledge available to the offeree at the time of rejection. While the applicant had succeeded at trial, the court found that the offer made by the respondent was substantial and that the applicant's rejection was not demonstrably unreasonable at that point. However, the court noted that the reasoning of the judges in the Court of Appeal differed, even though they agreed on the ultimate result. Ultimately, the court concluded that the applicant's rejection of the *Calderbank* offer was not unreasonable.

The notice of motion seeking indemnity costs was dismissed, with costs awarded to the respondent.