Pro Property Pty Ltd v Orchard Holdings Pty Ltd

In the case of Pro Property Pty Ltd v Orchard Holdings Pty Ltd, the dispute was centred on a Calderbank offer made by the appellants on the eve of trial. The first respondent, Orchard Holdings, was successful at trial and the appellants were ordered to pay the first respondent's costs of the action. The appellants argued that they were entitled to costs despite the Calderbank offer as it was made on the eve of trial and exceeded the judgment sum. The legal issues before the court were whether the appellants were entitled to costs after making a Calderbank offer and the relevant principles to be applied in determining the significance of the timing of the offer.

The court examined the principles surrounding Calderbank offers and determined that the timing of the offer was critical. A Calderbank offer is a conditional offer to settle made without admission of liability, and the court has discretion to order costs against the party making the offer if the offer is not accepted and the party is not successful at trial. The court found that the timing of the offer, made on the eve of trial, was significant as it demonstrated a lack of genuine intention to settle the dispute. Furthermore, the fact that the offer exceeded the judgment sum did not entitle the appellants to costs as it did not meet the criteria for a successful Calderbank offer. The court concluded that the appellants were not entitled to costs after making the Calderbank offer.

The court ordered that the appellants pay the first respondent's costs of the action, including the costs incurred from the time of the Calderbank offer. This decision highlights the importance of the timing of Calderbank offers and the consequences of making such offers on the eve of trial. It serves as a reminder to parties to carefully consider the implications of making a Calderbank offer and to ensure that it is made in a timely and genuine manner.