//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 680
Supreme Court of NSW
2026-06-15
Bennett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: D’Apice v Passas (No 3) [2026] NSWSC 680
Hearing dates: On the papers
Date of orders: 15 June 2026
Decision date: 15 June 2026
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Bennett J
Decision: The plaintiff pay the defendant’s costs on the ordinary basis to 18 July 2025, and the defendant’s costs on an indemnity basis from 19 July 2025.
Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Defendant makes offer of compromise in July 2025 — Material terms of offer are that there be judgment for the defendant and no order as to costs — Defendant makes later offer in February 2026 — February 2026 offer includes offer to pay plaintiff a sum of money as family provision — Both offers not accepted by plaintiff — Plaintiff’s claims dismissed in principal judgment — Whether defendant entitled to indemnity costs from the time of the July 2025 offer or the February 2026 offer — Whether the making of later offer relevant to Court’s discretion to otherwise order under r 42.15A(2) of the Uniform Civil Procedure Rules 2005 (NSW) — No issue of principle
Original judgment source is linked above.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 20.27, 42.13, 42.14, 42.15, 42.15A
Cases Cited: Bates v Cooke (No 2) [2014] NSWSC 1322
Bonanno v Finamore (No 2) [2023] NSWCA 24
C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd (No 2) [2023] NSWCA 240
Calderbank v Calderbank [1975] 3 All ER 333
Cooper v Kinsella (No 2) [2011] NSWCA 140
Curtis v Harden Shire Council (No 2) [2015] NSWCA 45
D’Apice v Passas (No 2) [2026] NSWSC 570
Fabre v Lui (No 2) [2015] NSWCA 312
Freedom Development Group Pty Limited v D’Ettorre Properties Pty Limited T/as D’Ettorre Real Estate (No 2)
Kmart Australia Limited v Marmara (No 2) [2025] NSWCA 48
Koprivnjak v Koprivnjak (No 2) [2023] NSWCA 62
Langdon v Carnival plc (2024) 115 NSWLR 78; [2024] NSWCA 168
Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2)
Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3
Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285
Oates v Oates (No 2) [2025] NSWSC 929
Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Taheri v Vitek (No 2) [2014] NSWCA 344
Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 4) [2025] NSWCA 184
Category: Costs
Parties: Maria D’Apice (Plaintiff)
Josephine Puopolo Passas (Defendant)
Representation: Counsel:
S Noss (Solicitor) (Plaintiff)
T Catanzariti (Defendant)
Solicitors:
Stephen Noss Lawyers (Plaintiff)
One Group Legal (Defendant)
File Number(s): 2023/00314494
Publication restriction: Nil
I gave the principal judgment in these proceedings on 22 May 2026: D’Apice v Passas (No 2) [2026] NSWSC 570 (Principal Judgment or PJ). This judgment presumes familiarity with the Principal Judgment. Defined terms in the Principal Judgment will be used here. I will also continue to refer to the plaintiff and the defendant as Maria and Josephine, respectively.
In the orders I made on 22 May 2026, I directed the parties to reach an agreement to resolve the issue of costs. Failing any agreement, I also made orders timetabling the provision of written submissions by the parties on costs.
The parties could not agree on the appropriate costs orders and have provided to my Chambers written submissions in accordance with the Court’s orders. I have received and had regard to the following sets of written submissions:
Josephine’s written submissions on costs dated 5 June 2026 (D****WS Costs); and
Maria’s written submissions on costs in reply dated 9 June 2026 (P****WS Costs).
The only issue remaining to be determined is costs.
“Order that the Plaintiff pay the Defendant’s costs on the ordinary [basis] to 18 July 2025, and the Defendant’s costs on the indemnity basis from 19 July 2025.”
The basis for this costs order was Maria’s rejection of an offer of compromise made by Josephine to Maria on 18 July 2025, which was said to be made pursuant to r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (first offer). The terms of the first offer are set out later in these reasons.
Maria submits the Court should make the following order (PWS Costs [1]):
“Order that, other than the costs relating to the hearing, the Plaintiff pay the Defendant's costs on the ordinary party-party basis to 2 February 2026 and on an indemnity basis from 3 February 2026 to the date of the hearing.”
The context for this proposed order needs some explanation. Maria’s submissions refer to two further offers to compromise the proceedings which were made by Josephine on 13 January 2026 (open for 14 calendar days) (second offer) and 2 February 2026 (open for 3 calendar days) (third offer). It will be noted that the third offer was made a week before the final hearing of this matter commenced. The terms of the third offer are set out below.
Maria accepted that her rejection of the third offer, which she herself described as being pursuant to r 20.26 of the UCPR, brought with it the consequential entitlement of Josephine to indemnity costs from the date of the making of the third offer pursuant to r 42.15A of the UCPR (PWS Costs [15]).
It is only the first offer and the third offer which are relevant to this dispute. No reliance is placed on the making or rejection of the second offer, save for a contention by Maria that the second offer was essentially a repetition of the first offer (which is relevant to an argument Maria makes about whether the Court should effectively treat the first order as having been withdrawn, about which more will be said below). This being so, I will only set out the terms of the first and third offers.
The first offer was in the following terms:
“Offer of compromise
The Defendant offers to compromise the whole of the Plaintiff’s claim and the Cross-Claimant’s claim on the following terms:
1 Judgment in favour of the Defendant.
2 No order as to costs.
3 This offer is open for acceptance for 28 calendar days after the date on which this offer is made.
4 This offer is made in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005.”
“Without prejudice save as to costs
Dear colleagues
We refer to your letter of 15 July 2025. We are instructed to reject the offer contained therein.
We attach by way of service, an offer made by our client pursuant to UCPR r 20.26 dated 18 July 2025 (Offer).
In the event the Offer is found not to be made in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW), the Offer is also made pursuant to the principles of Calderbank v Calderbank [1975] 3 All ER 333 and will be relied on in relation to costs.
The UCPR 20.26 Offer is open for 28 calendar days from the date of this letter, as is the Calderbank offer.
Should the plaintiff reject the Offer and then fail to obtain a better result at hearing as against our client, we reserve our client’s right to tender and rely upon this letter and the UCPR 20.26 offer in support of an application that the plaintiff pays our client’s costs of the proceedings on an indemnity basis from the date of the Offer.
Kind Regards,
[email signature of Josephine’s solicitor]”
“The Defendant offers to compromise the whole of the Plaintiff's claims in these proceedings, on the following terms
1 Order that the Plaintiff receive a lump sum equal to $51,000 out of the estate of the late Alessio Puopolo (‘Deceased’).
2 Order that the Plaintiff's costs as agreed or assessed on the ordinary basis will be met out of the Deceased's estate.
3 Order for probate in solemn form of the will of the late Alessio Puopolo dated 21 June 2012.
4 Order that the lump sum will be payable within 28 days of the date of the orders.
5 This offer of compromise is open for acceptance until 4 pm Thursday 5 February 2026.
6 This offer of compromise is made in accordance with UCPR 20.26.
6 [sic] In the event this offer does not comply with the Rules as to Offers of Compromise, the same offer is made on a ‘without prejudice save as to costs’ basis in accordance with the principles in Cal**derbank v Calderbank and may be relied upon by the Plaintiff any [sic] application for a special costs order.”
20.26 Making of offer
(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.
(2) An offer under this rule—
(a) must identify—
(i) the claim or part of the claim to which it relates, and
(ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and
(b) if the offer relates only to part of a claim in the proceedings, must include a statement—
(i) in the case of an offer by the plaintiff, as to whether the balance of the proceedings is to be abandoned or pursued, or
(ii) in the case of an offer by a defendant, as to whether the balance of the proceedings will be defended or conceded, and
(c) must not include an amount for costs and must not be expressed to be inclusive of costs, and
(d) must bear a statement to the effect that the offer is made in accordance with these rules, and
(e) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to that interim payment, and
(f) must specify the period of time within which the offer is open for acceptance.
(3) An offer under this rule may propose—
(a) a judgment in favour of the defendant—
(i) with no order as to costs, or
(ii) despite subrule (2)(c), with a term of the offer that the defendant will pay to the plaintiff a specified sum in respect of the plaintiff’s costs, or
(b) that the costs as agreed or assessed up to the time the offer was made will be paid by the offeror, or
(c) that the costs as agreed or assessed on the ordinary basis or on the indemnity basis will be met out of a specified estate, notional estate or fund identified in the offer.
(4) If the offeror makes an offer before the offeree has been given such particulars of the offeror’s claim, and copies or originals of such documents available to the offeror, as are necessary to enable the offeree to fully consider the offer, the offeree may, within 14 days of receiving the offer, give notice to the offeror that—
(a) the offeree is unable to assess the reasonableness of the offer because of the lack of particulars or documents, and
(b) in the event that rule 42.14 applies to the proceedings, the offeree will seek an order of the court under rule 42.14(2).
(5) The closing date for acceptance of an offer—
(a) in the case of an offer made two months or more before the date set down for commencement of the trial—is to be no less than 28 days after the date on which the offer is made, and
(b) in any other case—is to be such date as is reasonable in the circumstances.
(6), (7) (Repealed)
(8) Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer.
(9) An offer is taken to have been made without prejudice, unless the notice of offer otherwise provides.
(10) A party may make more than one offer in relation to the same claim.
(11) Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer.
(12) A notice of offer that purports to exclude, modify or restrict the operation of rule 42.14 or 42.15 is of no effect for the purposes of this Division.
…
42.15A Where offer not accepted and judgment no less favourable to defendant
(1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer.
(2) Unless the court orders otherwise—
(a) the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and
(b) the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, assessed on an indemnity basis—
(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and
(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
The term “offer” in r 42.15A of the UCPR (and div 3 of pt 42, which also includes rr 42.14 and 42.15) refers to an offer of compromise “made under” r 20.26 with respect to a plaintiff’s claim: UCPR r 42.13.
The proper approach to be taken in an application for an order for costs on an indemnity basis from the date of a rejected offer of compromise under rr 42.14, 42.15, or 42.15A of the UCPR, as relevant, can be summarised in the following sequential steps.
First, to be able to even apply rr 42.14, 42.15 or 42.15A, the Court must be satisfied that the offer of compromise was an offer “made under” r 20.26 of the UCPR. That is, the offer of compromise in question must comply with the rules governing the form of offers of compromise set out in r 20.26. Additionally, while not stated directly in r 20.26 but as a consequence of the combined operation of r 20.26(2)(a) and r 20.27(3), an offer “made under” r 20.26 must also be an offer where the orders proposed in the offer are orders which could be made by the Court in the proceedings: Oates v Oates (No 2) [2025] NSWSC 929 at [16]-[20] (Brereton J). If the Court is not satisfied that an offer of compromise is one which is “made under” r 20.26, it might be that the offeror could still rely on the offer of compromise to obtain an indemnity costs order under the rubric of so-called “Calderbank” offers. In relation to Calderbank offers, see C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd (No 2) [2023] NSWCA 240 (C&V Engineering Services) at [28]-[32] (Kirk, Adamson and Stern JJA).
Second, once the Court is satisfied an offer has been “made under” r 20.26, then the Court must be satisfied that the relevant conditions in rr 42.14(1), 42.15(1) or 42.15A(1), whichever is relevant in a given case, have been met. That is, the Court must be satisfied that:
the offer was not accepted by the relevant offeree (which would evidently be the case in circumstances where the parties have proceeded all the way to final judgment and no one has sought to enforce an allegedly accepted compromise); and
without wishing to put too much of a gloss on the rules themselves, the offer contains orders which are as good as or better than the outcome ultimately achieved by the offeree (regard should be had to the specific wording of the relevant rule being relied upon at the time of the application).
If the Court is satisfied that the conditions in rr 42.14(1), 42.15(1) or 42.15A(1), whichever is relevant, have been met, the offeror party then has a prima facie entitlement to indemnity costs from the date of the offer: Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 4) [2025] NSWCA 184 (Yowie Group) at [17] (Bell CJ, Payne and Stern JJA); Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 (Leach) at [40] (McColl JA, Gleeson JA and Sackville AJA agreeing); Langdon v Carnival plc (2024) 115 NSWLR 78; [2024] NSWCA 168 (Langdon) at [187] (Ward P, Kirk JA agreeing).
Once the prima facie entitlement to indemnity costs from the date of the unaccepted offer arose under rr 42.14, 42.15 or 42.15A, the question then becomes whether the Court can be satisfied that it would be appropriate to “order otherwise” in the circumstances of the case. The onus is on the unsuccessful party who is seeking a departure from the prima facie position (ie, the offeree) to persuade the Court indemnity costs should not be ordered: Yowie Group at [17]; Leach at [29]; Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 at [27] (Bathurst CJ, Beazley P and Basten JA); Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 at [28] (Gleeson JA and Tobias AJA).
There is no exhaustive list of the circumstances which might justify a departure from the prima facie position provided by rr 42.14, 42.15 or 42.15A. What is required is for the offeree party to satisfy the Court that, in the particular circumstances of the case, it would be justified in departing from the prima facie position: Langdon at [188] (Ward P, Kirk JA agreeing); Bates v Cooke (No 2) [2014] NSWSC 1322 at [33] (Kunc J). Some factors which might justify departure from the prima facie position include:
whether, judged prospectively at the time of the offer, the offeree acted reasonably in not accepting the offer in question: see Langdon at [188] and the authorities there cited; Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285 at [11] (Giles, Macfarlan and Young JJA); or
there being a change in the way in which the case is being put since the time of the offer: Cooper v Kinsella (No 2) [2011] NSWCA 140 at [18]-[19] (Hodgson JA, Allsop P and Sackville AJA agreeing).
I emphasise that what is listed above is not an exhaustive list of circumstances that might justify departure from the prima facie position in rr 42.14, 42.15 or 42.15A.
However, it is “well settled” that where there is no meaningful compromise offered in the first place (sometimes described as there being no “real” or “genuine” compromise offered), it would be not be appropriate to order indemnity costs in accordance with rr 42.14, 42.15 or 42.15A: Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3 at [5] (Gleeson and Leeming JJA and Emmett AJA). Whether there is a “genuine” compromise offered is determined objectively, according to the circumstances of the case at the time the offer was put, and not with hindsight: Leach at [42]. A “walk-away” offer by a defendant, being an offer to settle the proceedings by an order in the defendant’s favour with each party to bear their own costs, can be a “genuine offer of compromise” in the circumstances of a given case: Leach at [50]-[51]; Freedom Development Group Pty Limited v D’Ettorre Properties Pty Limited T/as D’Ettorre Real Estate (No 2) [2023] NSWCA 185 at [14] (Gleeson JA, Leeming and Kirk JJA agreeing).
At this juncture, it is appropriate to briefly comment on why it is relevant whether there is a real or genuine compromise offered.
In many cases the Court of Appeal has treated the need for an offer to provide some measure of compromise (a “genuine” or “real” compromise, as it is sometimes described) as a precondition to even being able to apply rr 42.14, 42.15 or 42.15A, in that for an offer of compromise under r 20.26 to be described as such, there must be some compromise: see, eg, Leach at [41], Langdon at [196] (Ward P, Kirk JA and Basten AJA agreeing). In other cases, the Court of Appeal appears to have proceeded on the basis that when an offer of compromise makes no real or genuine compromise, that is a factor which makes it appropriate to “order otherwise” within the terms of rr 42.14, 42.15 or 42.15A (which is sometimes stated as being done in the alternative to consideration of whether an offer lacking compromise was an offer of compromise under r 20.26 at all): eg, Kmart Australia Limited v Marmara (No 2) [2025] NSWCA 48 (Kirk and McHugh JJA, Griffiths AJA) at [24]-[26]; Fabre v Lui (No 2) [2015] NSWCA 312 at [7]-[8] (Basten, Macfarlan and Meagher JJA); Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 (Regency Media) at [25]-[28] (Spigelman CJ, Beazley and McColl JJA); Koprivnjak v Koprivnjak (No 2) [2023] NSWCA 62 at [24]-[32] (Griffiths AJA, Leeming and Mitchelmore JJA agreeing).
There might be said to be some lack of clarity as to the precise step in the analysis it becomes relevant to consider whether an offer of compromise involves a meaningful compromise, as judged against the circumstances prevailing at the time of an offer. Some decisions of the Court of Appeal lend weight to the conclusion that this question is relevant to characterising whether an offer of compromise even meets the description of an offer “made under” r 20.26. However, other decisions evidently treat the question as being relevant to whether the Court should “order otherwise” (including in the alternative).
However, in almost all circumstances it will not really matter where precisely in the analysis the question of the genuineness of the compromise offered fits. As the Court of Appeal said in Regency Media at [28], in a passage quoted more recently in Bonanno v Finamore (No 2) [2023] NSWCA 24 at [8]:
“It will rarely be the case that a decision needs to be made as to whether or not an ‘offer’ answers the description of an ‘offer of compromise’ within the rules. To the extent that the element of compromise is absent, the Court will be more likely to ‘otherwise order’.”
In substance, the only real issue between the parties appears to be whether Josephine’s entitlement to the payment of her costs on an indemnity basis should start from 19 July 2025, the day after the first offer, or 3 February 2026, the day after the third offer. Those dates are derived from r 42.15A(2)(b).
It is worth stating what is not in dispute between the parties. There is evidently no dispute that Maria should pay Josephine’s costs of the proceedings, as would be the starting point in any event given r 42.1 of the UCPR.
Additionally, Maria has raised no issue as to whether the first and the third offers complied with the requirements of r 20.26 of the UCPR. In PWS Costs at [10], Maria expressly accepted that the making of, relevantly, the first offer and the third offer has enlivened r 42.15A of the UCPR. I observe that the final substantive outcome for Josephine was clearly no less favourable to her than the terms of the offers. The Court ordered that Maria’s claims should be dismissed and that Josephine should be granted probate in solemn form of the 2012 Will.
By reason of r 20.26(5)(b), the closing date for the third offer, being less than two months before the commencement of the trial, needed to be a date which was “reasonable in the circumstances”. While the third offer closed only three days after it was made, Maria did not take issue with the time available to accept the offer.
In DWS Costs, which pre-date the submissions of Maria, after stepping through why the starting position as to costs in r 42.15A of the UCPR was reached, Josephine simply submitted that the onus was on Maria to demonstrate why the Court should “otherwise order” so as to depart from that starting position provided (DWS Costs [8]-[9]). Against the possibility the Court concluded the offer was not compliant with r 20.26, Josephine did make alternative submissions in support of a special costs order, given the onus would have been on her to prove why it was unreasonable for Maria to reject the “Calderbank offer”. I will come back to those submissions at the end of this section.
For her part, Maria was effectively asking the Court to exercise its discretion under r 42.15A to order otherwise and not vindicate Josephine’s entitlement to indemnity costs from the date of the first offer. Maria made the following submissions in PWS Costs (bracketed references to paragraphs are to paragraphs of PWS Costs):
The third offer “changed the effect of non-acceptance of the earlier offers” as there was now acceptance of the possibility of a “partial success” by Maria, and the “making of the third offer meant the consideration ceased to be whether [Maria] could succeed at all, but to what degree she would succeed” ([7]-[8]).
The third offer, the terms of which were “inconsistent with the earlier offers”, “must have had the effect of both earlier offers ceasing to have any future relevance” and could only be consistent with seeing the earlier offers as being “fully and completely withdrawn”. According to Maria, “the making of inconsistent offers must mean … that only the last is operative and that making it has meant all earlier ones are withdrawn for all purposes” ([8], [10]-[11], [13]).
In summary “[Maria] was not acting unreasonably in having rejected the earlier two offers when a third was made, inconsistent with them” ([14]).
I do not accept Maria’s submissions.
As Maria accepted and as is expressly countenanced in UCPR r 20.26(10), multiple offers may be made in relation to the same claim. There is no apparent reason why it should be that, as a matter of principle, once a later offer is made that is “inconsistent” (to use Maria’s term) with the terms of a former offer, that the former offer ought to be treated as “fully and completely withdrawn”. Albeit in the context of accepting offers, the UCPR itself expressly permits a party to accept an earlier offer even if a further offer is made during the period of acceptance for the first offer: UCPR r 20.27(2). There is no qualification to that rule, such that it could plausibly cover a situation where an earlier offer offers one thing, and a later offer offers something “inconsistent with” the earlier offer. It would therefore be going too far to say that once a later offer is inconsistent with an earlier offer, the later offer must be seen to be withdrawing the earlier offer: to accept such an absolute proposition would be to cut across r 20.27(2) which seems to clearly contemplate an earlier offer as being capable of acceptance subject only to the closing date for the period of acceptance.
I otherwise do not accept Maria’s submissions that there is a proper basis for the Court to exercise its discretion to depart from r 42.15A.
To the extent Maria is submitting that her rejection of the first offer was not unreasonable in light of the third offer (PWS Costs [14]), that submission must be rejected as it inverts the proper inquiry: reasonableness is not to be determined with hindsight. Maria did not make submissions as to why it was reasonable for her to reject the first offer at the time the offer was made.
Whether an offer constitutes a genuine offer of compromise is similarly to be assessed in the circumstances at the date of the offer. Maria did not submit the first offer, which was a “walk-away” offer in that it involved Josephine only really compromising on costs, did not involve a genuine offer of compromise. I observe that in this case, the proceedings had been on foot for some time by the time of the first offer. Given the amount of evidence that had been put on by Josephine’s side of the record by the time of the first offer, it impressionistically appears to me sufficient costs would have been incurred such that even compromising only on costs would still involve a real element of compromise in the circumstances of this case.
While the fact that the third offer was made at all might be permissibly taken into account as part of the circumstances of the case, Maria does not point to any circumstance which justifies the Court disregarding the first offer having been made.
A change in the way a case is being put which manifests after an offer is made may justify refusing to make an indemnity costs order referable to the aforementioned offer under the UCPR. However, Maria had identified no changes between how the case was put by Josephine at the time of the first offer and at the time of the third offer which might justify not ordering indemnity costs from the time of the first offer. Other than updating affidavits, the substantive evidence was all on even when the first offer was made. There were also no amendments to the pleadings, or new pleadings altogether, in between the first and the third offers.
It appears the only circumstance that Maria can point to as justifying the Court departing from the starting position of r 42.15A in respect of the first offer is the making of the third offer itself. However, that cannot be a sufficient basis to disentitle Josephine from receiving her costs on an indemnity basis from the time of the first offer. If a party can make multiple offers, then they are entitled to make multiple offers which might be “inconsistent” with each other. Rationally, a party might make numerous offers to provide varying levels of costs protection against the range of possibilities that might exist in a given case, such as, for example, different amounts of provision in a family provision case. This being so, the simple fact multiple offers have been made cannot provide a basis to disregard an offer the rejection of which might otherwise enliven r 42.15A, and the Court should not generally proceed on the basis that earlier offers can be treated as “withdrawn” merely because a later “inconsistent” offer is made (without even getting into the uncertain limits of what it even means for offers to be “inconsistent” or what it would mean for an offer to be treated as “withdrawn”).
In conclusion, I accept Josephine’s submissions that the first offer, being an offer which was “made under” r 20.26 which was not accepted by Maria, has triggered the cost consequences of r 42.15A(2) of the UCPR. Maria has not satisfied the Court that it would be appropriate to “order otherwise” and depart from the costs position provided by the rule in the circumstances of this case. I will accordingly make the costs order Josephine submitted I should make.
As I referred to at the start of this section, Josephine made submissions in the alternative contending that if the first offer is treated as a Calderbank offer, then it was unreasonable for Maria to reject that offer. Against the possibility I am wrong in some way to have concluded that the offer was an offer of compromise under r 20.26, I will consider whether Josephine should get the costs order she seeks on the basis of the first offer being a Calderbank offer.
As mentioned earlier, the principles relevant to assessing whether a party unreasonably rejected a Calderbank offer were set out by the Court of Appeal in C&V Engineering Services at [28]-[32]. I will not reproduce those paragraphs in this judgment. However, it is worth emphasising that unlike under an offer of compromise made under the UCPR there is no presumption an offeree will be ordered to pay an offeror’s costs on an indemnity basis from the date of an offer where the offeree rejects a Calderbank offer and fails to obtain a more favourable judgment. The onus is on the offeror, Josephine, to justify the special costs order.
I accept Josephine’s submissions that assessed at the time of the offer, it was unreasonable for Maria to have rejected the first offer.
In relation to the extent of the compromise offered, while the only compromise on Josephine’s part was as to costs, as I have already said above, it does appear that in the circumstances of the case (but noting there was no evidence as to the amount of legal costs incurred by Josephine at the time of the first offer) that even a compromise as to costs only was a meaningful compromise.
To somewhat repeat what I said earlier, the first offer was made after the proceedings had been on foot for some time and, as Josephine submitted at DWS Costs [11(a)-(b)], the substantive evidence was on and the proceedings were ready for hearing (the Registrar in Equity set the matter down for hearing on 29 July 2025, when the first offer was still open for acceptance).
I accept Josephine’s submissions at DWS Costs [11(c)-(d)] to the effect that assessed as at the date of the offer, Maria’s prospects of success were not significant.
In relation to Maria’s claim the 2012 Will was not valid, at the time of the first offer Maria had to hand the 2014 Statutory Declaration in which Alessio confirmed and repeated his testamentary intentions set out in the 2012 Will (see PJ [99], [151]-[161]) which, as Josephine submitted, was not challenged (PJ [126]-[127]). She also had the evidence of numerous other persons who had repeatedly interacted with Alessio which indicated that Alessio had repeatedly affirmed his testamentary intentions as expressed in the 2012 Will, namely his intention to give 79 RXXX Street to Josephine (PJ [248]). Noting Maria made no submissions to the contrary, I am satisfied that Maria’s prospects of success in relation to her attempt to invalidate the 2012 Will were low enough that it would be unreasonable to not accept even a “walk-away” offer to compromise this claim.
In relation to Maria’s family provision claim, which was run as an alternative to her claim in relation to the 2012 Will, while the updating affidavits were not on, even the evidence which was on at the time of the first offer disclosed that Maria and her husband Nino had significant assets, including many properties which had been provided to Maria by Alessio (for a partial sketch of that evidence, see PJ [265]). Additionally, the 2012 Will and the 2014 Statutory Declaration, which Maria had at the time of the first offer, both contained within it justifications for why Alessio did not make provision for Maria, referring to the care given by Josephine (it being an acknowledged fact and uncontested that Josephine had been living with Alessio since 2015) and prior provision given to Maria. Again, noting Maria made no submissions to the contrary, I am satisfied that Maria’s prospects of success in relation to her family provision claim were low enough that it would be unreasonable to not accept even a “walk-away” offer to compromise this claim.
The covering email to this offer also makes clear that the first offer would be relied upon in an application for indemnity costs from the date of the first offer, even in the circumstance where the offer was not to be treated as one under r 20.26. The terms of the offer are also sufficiently clear.
Given that the reasonableness of the rejection of a Calderbank offer is to be judged as at the time of the offer, the fact of a more favourable offer, the third offer, being made later is irrelevant.
For those reasons I am also satisfied that it was unreasonable for Maria to reject the first offer, if viewed as a Calderbank offer. This provides an independent basis to sustain an order that Josephine’s costs be paid on an indemnity basis from the day after the first offer was made.
For the reasons set out above, I make the following order:
The plaintiff pay the defendant’s costs on the ordinary basis to 18 July 2025, and the defendant’s costs on an indemnity basis from 19 July 2025.
**********
D’Apice
Passas (No 3)
[2026] NSWSC 570
(2024) 115 NSWLR 78