Segal v Commonwealth Bank of Australia

The appeal concerned an application for indemnity costs brought by the second respondent against the appellant following the discontinuance of appeal proceedings. The appellant had also a history of non-compliance with court directions. The central question was whether an offer of compromise or Calderbank offer made by the appellant contained a genuine element of compromise.

The court was required to determine whether the appellant's offer of compromise was sufficiently advantageous to the second respondent to warrant an award of indemnity costs. This involved an assessment of the terms of the offer in light of the circumstances of the case and the appellant's conduct, including the discontinuance of the appeal without explanation and prior non-compliance with court directions.

Ward JA reasoned that the offer of compromise did not demonstrate a genuine element of compromise, particularly given the appellant's conduct. The court found that the offer was not one that a reasonable person in the position of the second respondent would have accepted. Consequently, the court ordered the appellant to pay the second respondent's costs of preparing and filing a specific affidavit and of an appearance on an indemnity basis. The existing costs orders were confirmed, and the appellant was ordered to pay the balance of the second respondent's costs on the ordinary basis.