Sydney Harbour Foreshore Authority v Perrett (No 2)

Sydney Harbour Foreshore Authority (the Authority) sought to set aside a judgment entered against it in favour of Mr Perrett. The Authority had made a *Calderbank* offer to Mr Perrett, which it contended was a genuine offer of compromise. Mr Perrett had not accepted this offer and had proceeded to judgment, which was more favourable to him than the *Calderbank* offer. The Authority sought to rely on the *Calderbank* offer to obtain an order for indemnity costs. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the Authority's *Calderbank* offer constituted a genuine offer of compromise, and if so, whether it should be awarded indemnity costs on the basis that Mr Perrett had failed to achieve a more favourable outcome at trial. The Court was required to consider the principles governing *Calderbank* offers and the circumstances in which indemnity costs may be awarded.

The Court of Appeal held that the Authority's *Calderbank* offer was not a genuine offer of compromise. The Court reasoned that the offer was made in circumstances where the Authority had already indicated a strong intention to appeal the primary judge's decision, and the offer itself was structured in a way that did not reflect a genuine desire to settle the dispute. The Court noted that a *Calderbank* offer must be a genuine attempt to compromise litigation, and in this instance, the offer was seen as a tactical move rather than a sincere proposal for settlement. Consequently, the Court found that the Authority was not entitled to indemnity costs.

The motion of the Sydney Harbour Foreshore Authority to set aside the judgment and for indemnity costs was dismissed.