Pan v St George Design & Construction Pty Ltd (No 2)

In the matter of Pan v St George Design & Construction Pty Ltd, the Central Authority of the Civil and Administrative Tribunal in New South Wales dealt with a dispute concerning the unreasonable refusal of a Calderbank offer in relation to costs. The plaintiff, Mr Pan, was engaged by the defendant, St George Design & Construction Pty Ltd, for construction services. After the completion of the contract, a dispute arose regarding the amount owed to Mr Pan for his services. The Tribunal had previously made an order for costs in favour of Mr Pan, but the defendant challenged this decision.

The legal issues before the Tribunal involved whether the defendant had unreasonably refused a Calderbank offer. Under Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), a party may make a Calderbank offer, which is an offer to compromise a claim or defence, and if the offer is not accepted and the offeror subsequently succeeds in the proceedings, they may be entitled to costs on a more favourable basis. The Tribunal needed to determine whether the defendant's refusal was reasonable or if it was unreasonable, which would entitle Mr Pan to costs on the ordinary basis.

The Tribunal found that the defendant had unreasonably refused the Calderbank offer. The Tribunal considered the circumstances surrounding the offer, including the terms and timing of the offer, and concluded that the defendant's refusal was not justified. As a result, the Tribunal varied the previous costs order to reflect that the defendant should pay Mr Pan's costs on the ordinary basis, except in respect of the costs order made on 9 February 2024. The Tribunal also affirmed the costs order made on that date. The Tribunal did not consider it necessary to hold a further hearing on the issue of costs and dispensed with such a hearing under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).