//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] ACTCA 30
respondent. The appeal was dismissed. The appellant was ordered to pay the respondents’ costs of the appeal, as agreed or assessed ([49]).
The Court of Appeal held that the offer of compromise was too unclear to qualify under the ACT Rules. Although it named a sum and said it covered the whole claim, it did not explain whether all defendants had to accept together or whether one could accept alone, and it did not say what would happen to the claims against defendants who did not accept. The court could not fix that uncertainty by guessing what the appellant probably meant. The appeal was dismissed, and the appellant was ordered to pay the respondents’ appeal costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,041 words · generated 06/10/2026
Benjamin Tattersall brought personal injury proceedings after a chain box attached to a manually operated roller door fell on his head at work. His case was that a defective weld had caused the box to fall ([17]). The proceedings involved multiple defendants, including Dormakaba Australia Pty Ltd, Zavindi Pty Ltd trading as Goulburn Roller Doors, and Nathan Flanagan. The factual background also refers to a fourth defendant, although the appeal caption and the parties identified in the appeal name three respondents ([18]–[21]).
2 cited instruments linked from this judgment.
On 12 October 2023, during the underlying proceedings, Tattersall made an offer of compromise under Part 2.10 of the Court Procedures Rules 2006 (ACT). It offered to settle “the entirety of the plaintiff’s claim” for “$245,000.00 plus costs as agreed or assessed” and proposed that “a verdict be entered for the plaintiff” for that sum plus costs ([22]). The offer remained open for 28 days. It also referred to Calderbank v Calderbank and reserved a position about seeking indemnity costs ([22]). None of the remaining defendants responded ([23]).
The underlying trial resulted in a verdict for Tattersall against the remaining defendants and an award of $347,470. The Primary Judge allocated 30 per cent of responsibility to the first defendant and 70 per cent to the third and fourth defendants ([21]). Tattersall then sought a special costs order based on the offer. The Primary Judge refused that application, finding the offer did not comply with r 1002 because it did not adequately identify the proposed orders disposing of the claim ([26], [29]–[34]).
The appeal was narrow: did the offer identify the proposed orders for disposing of Tattersall’s claim, as required by r 1002(2)(a)(ii)? ([36]). The Court of Appeal dismissed the appeal and ordered Tattersall to pay the respondents’ appeal costs, as agreed or assessed ([48]–[49]).
Rule 1002(2)(a)(ii) requires an offer to identify “the proposed orders for disposal of the claim or part of the claim”, including the amount if a monetary judgment is proposed ([28]). The Court treated that requirement as substantive to the offer’s operation, not as satisfied merely because the offer identified a dollar figure. Rule 1003(3), which permits a party to an accepted offer to apply for judgment accordingly, reinforced the need to know what judgment the offer proposes ([37]–[39]).
The offer had more than one plausible meaning. As the Primary Judge identified, it could be read as an offer to all defendants jointly, which required joint acceptance, or as an offer each defendant could accept separately ([30]). The Court of Appeal considered the appellant’s preferred reading, that an individual defendant could accept. Even on that reading, the proposed orders remained unclear ([8]–[9]).
There were then two possible consequences if one defendant accepted and the others did not. One was that verdicts would be entered for the non-accepting defendants. The other was that the court would still need to determine the plaintiff’s claims against those defendants ([9]). Those outcomes were materially different. The first could end the plaintiff’s claims against the other defendants; the second would leave those claims unresolved. The offer did not specify which result was intended.
That uncertainty mattered because the offer said it related to the “entirety” of the claim. If acceptance by one defendant did not dispose of the claims against the others, the offer might not achieve what its terms said it would achieve. The Court observed that an interpretation leaving part of the claim unresolved would also raise the issue addressed by r 1002(2)(b)(i), which requires an offer relating to only part of a proceeding to state whether the remainder is abandoned or pursued ([10]).
The Court also explained why it would not simply assume that acceptance by one defendant ended the claims against the rest. Entering verdicts for the remaining defendants could have disadvantaged Tattersall. For example, if the accepting defendant later lacked the capacity to pay, verdicts in favour of the other defendants might prevent recovery from them. Those verdicts could also affect costs ([11]). The offer did not expressly state that acceptance by one defendant would necessarily result in verdicts for the others.
The core point was that the offer’s consequences could only be worked out by inference. The Court held that inference did not cure the defect: “Where, as here, the offer was such that its intention could only be divined by inference, it was necessarily ambiguous” ([44]). It also reasoned that inferring that non-accepting defendants were released would not itself produce verdicts disposing of the claims against them or end any costs issues arising from those claims ([46]–[47]).
Baker J agreed with the Court’s conclusion and added that the ambiguity persisted even if the appellant’s construction of the offer were accepted ([7]–[12]). Taylor J agreed with Ainslie-Wallace AJ’s reasons and Baker J’s additional comments ([15]).
The judgment applies the text of the ACT offer-of-compromise rules to a multi-defendant claim. The rules quoted by the Court require an offer to identify the claim it concerns and the proposed orders for disposing of it. They also require specified matters such as the acceptance period ([28]). Rule 1003(3) provides that, after acceptance, a party to the offer may apply for judgment to be entered accordingly ([37]).
The decision does not announce a new statutory test or change the wording of those rules. Rather, it explains how the existing requirement operates where an offer addressed to several defendants leaves uncertain who may accept and what happens to the claims against defendants who do not accept. The Court held that a monetary amount and a general proposal for a verdict were not enough in these circumstances.
The judgment also distinguishes between identifying what the offeror probably intended and identifying the orders the offer actually proposes. The Primary Judge considered that the offer was probably intended to be a joint offer, but the Court of Appeal agreed that such an inference did not cure the lack of clarity ([3], [44]). In that respect, the ruling treats clear expression of the proposed orders as important to the operation of the rules, particularly because an accepted offer may be used as the basis for an application for judgment ([37]–[39]).
The source judgment does not provide a survey of the law before this decision, nor does it establish how later courts have applied it. Its reasoning is therefore best understood as a focused application of rr 1002 and 1003 to the particular ambiguity in this offer. It does not decide every question about multi-party offers, apportionment, or the relationship between offers under the Rules and Calderbank offers.
At [44], Ainslie-Wallace AJ said that where the offer’s intention could only be “divined by inference”, it was “necessarily ambiguous”. In plain English, the court must be able to understand the proposed orders from the offer itself. A likely guess about what the offeror meant is not a substitute for clear terms.
At [46], the Court said that inferring the effect of acceptance “of itself demonstrates the fatal ambiguity”. In plain English, if a reader has to infer whether accepting the offer releases other defendants, that uncertainty is itself evidence that the offer does not clearly explain what acceptance does.
At [47], the Court explained that even if acceptance were inferred to release the non-accepting defendants, that would not necessarily result in verdicts dealing with the claims against them or bring any related costs issues to an end. In plain English, a supposed practical understanding between the parties is not the same thing as specifying court orders that finally dispose of the relevant claims.
Baker J described the decision as “a salutary warning” about precision in drafting offers under r 1002 ([13]). The practical point is captured in the Primary Judge’s observation, quoted by the Court, that setting out the actual orders in numbered paragraphs can eliminate ambiguity caused by paraphrasing ([13]–[14], referring to Primary Judgment at [23]).
The Court also referred to Farmer v Broadspectrum (Australia) Pty Ltd (No 3) [2024] NSWSC 53. It noted that r 20.27(3) of the NSW Uniform Procedure Rules is identical to ACT r 1003(3), and quoted the NSW judge’s observation that “clarity of expression and formality of the orders offered, are essential” ([38]). The appellate judgment used that point to underline why the proposed orders matter where judgment may be sought following acceptance.
The reasoning is most directly engaged where an offer is made to multiple defendants but does not clearly state whether they must accept collectively or may accept individually. That was an express ambiguity identified in this case ([8]–[9]).
It is also relevant where an offer purports to settle an entire claim, but acceptance by fewer than all defendants may leave claims against the others unresolved. The judgment stresses the need to identify what happens to those remaining claims, including whether the proposed orders would resolve them or leave them for later determination ([9]–[10], [46]–[47]).
A further issue arises where different possible readings of acceptance could produce different litigation or costs consequences. Here, the Court considered that entering verdicts for non-accepting defendants could potentially disadvantage the plaintiff, including if the accepting defendant lacked capacity to pay, and could have adverse costs consequences ([11]). Such consequences underscore why an offer should not leave the effect of partial acceptance to inference.
The judgment does not say that every offer involving several defendants must use a particular form or include apportionment orders. The specific issue was whether the offer identified the orders necessary to dispose of the claim. The reasons focus on clarity about acceptance and the effect on the remaining claims, rather than prescribing a universal drafting formula.
The judgment itself does not identify any later decisions applying or considering [2025] ACTCA 30. Because the decision date is 31 July 2025 and the provided text contains no post-decision case history, no conclusion about later judicial treatment can be drawn from this source.
The authorities discussed in the judgment are earlier authorities, not later treatment. Farmer v Broadspectrum (Australia) Pty Ltd (No 3) [2024] NSWSC 53 was referred to for its discussion of the NSW rule corresponding to ACT r 1003(3) and the importance of clarity and formality in proposed orders ([38]). Calderbank v Calderbank [1975] 3 All ER 333 appears in the account of the Primary Judge’s consideration of the offer’s Calderbank character ([22], [34]). King v Yurisich (No 2) [2007] FCAFC 51 is mentioned because the Primary Judge cited it when questioning whether a joint offer would comply ([3]). These references help explain the background and context, but the Court of Appeal’s dispositive reasoning rests on the ambiguity under r 1002.
The judgment resolves the appeal on the particular offer’s ambiguity. It does not determine whether a clearly expressed offer requiring joint acceptance by all defendants would satisfy r 1002 in every case. Baker J notes that the Primary Judge queried that issue but did not need to decide it, and the Court of Appeal did not resolve it ([3]).
Nor does the decision establish a general rule about whether an individual defendant may settle a plaintiff’s non-apportionable personal injury claim while leaving contribution or indemnity disputes among defendants for later determination. The appellant advanced an argument about that possibility, but the appeal was decided on the failure to identify clearly the proposed orders, not through a broad ruling on the allocation of liability between defendants ([5]–[6], [40]–[47]).
The judgment also does not decide the precise costs consequences of every form of partial acceptance. It identifies potential adverse costs consequences as one reason why the offer’s meaning mattered, but the appeal concerned compliance with r 1002(2)(a)(ii), not a comprehensive determination of costs in hypothetical acceptance scenarios ([11], [46]–[47]).
For practitioners and compliance professionals, the judgment’s source-grounded lesson is narrow but practical: where an offer is made to several parties, its text should make clear who may accept, what orders follow from each permitted form of acceptance, and whether any claims remain. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Tattersall v Dormakaba Australia Pty Ltd Citation: [2025] ACTCA 30 Hearing Date: 11 November 2024 Decision Date: 31 July 2025 Before: Baker and Taylor JJ, Ainslie-Wallace AJ Decision: (1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs of the appeal to be agreed or assessed.
Catchwords: APPEAL – CIVIL LAW – Costs – whether plaintiff’s offer of compromise clearly identified proposed orders necessary for disposal of claim – whether Primary Judge erred in finding offer non-compliant with r 1002 of the Court Procedures Rules 2006 (ACT) – where offer did not state whether it could be accepted by all defendants jointly or by one or more alone – offer open to two possible constructions – offeror’s intention capable of being discerned by inference – inferring intention does not cure deficiency – offer ambiguous and non-compliant with the Rules – appeal dismissed Legislation Cited: Court Procedures Rules ACT (2006) rr 1002, 1003 Uniform Procedure Rules 2005 (NSW) r 20.27 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Farmer v Broadspectrum (Australia) Pty Ltd (No 3) [2024] NSWSC 53 Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390 Tattersall v Dormakaba Australia Pty Ltd (No 2) [2024] ACTSC 28
Parties: Benjamin John Tattersall (Appellant) Dormakaba Australia Pty Ltd (First Respondent) Zavindi Pty Ltd t/as Goulburn Roller Doors (Second Respondent) Nathan Flanagan (Third Respondent) Representation: Counsel A Muller SC w/ B Jullienne (Appellant) M Nesbeth (First Respondent) B Kelleher SC w/ J Moffett (Second and Third Respondent) Solicitors Blumers Personal Injury Lawyers (Appellant) Barry Nilsson Law (First Respondent) Mills Oakley (Second and Third Respondent) File Number: ACTCA 3 of 2024 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 14 February 2024 Case Title: Tattersall v Dormakaba Australia Pty Ltd (No 2) Citation: [2024] ACTSC 28 Court File Number: SC 47 of 2023 BAKER J:
The factual background to these proceedings is comprehensively set out in the judgment of Ainslie-Wallace AJ. I agree with her Honour that the appeal should be dismissed, and that the appellant should pay the respondents’ costs, as agreed or assessed.
As observed by Ainslie-Wallace AJ, Mossop J (the Primary Judge) identified two possible constructions of the Offer of Compromise, namely: (i) That it was an offer made to all three defendants jointly, which could only be accepted by all three acting jointly; or (ii) That it was an offer made to any one of the defendants to accept, whether or not the other defendants accepted the offer. See Tattersall v Dormakaba Australia Pty Ltd (No 2) [2024] ACTSC 28 (Primary Judgment) at [28].
The Primary Judge concluded that the first construction was “probably intended” by the appellant: Primary Judgment at [31]. His Honour queried whether such an offer would have complied with r 1002 of the Court Procedures Rules 2006 (ACT) (the Rules): Primary Judgment at [32], citing King v Yurisich (No 2) [2007] FCAFC 51 at [8]-[11], but did not find it necessary to determine this issue, as the offer did not “identify … the proposed orders for disposal of the claim”, and hence did not comply with r 1002(2)(a)(ii) of the Rules: Primary Judgment at [32].
The appellant contended that the Primary Judge erred in so finding. It submitted that the second construction was correct, and that, so construed, it was an offer which satisfied r 1002 of the Rules.
Specifically, the appellant submitted that because the appellant’s personal injury claim was non-apportionable, the claim was capable of disposition “by way of a judgment or settlement for a monetary sum in the appellant’s favour”. In these circumstances, the appellant contended that it “required no more or less than an acceptance of his monetary offer, and a judgment in his favour to that effect, to dispose of the claim he made”. the appellant submitted that if any defendant accepted the Offer of Compromise, it would then be open to that defendant to seek a determination from the Court as to the issue of apportionment between itself and the other defendants.
In support of this contention, the appellant noted that the terms of the orders that were ultimately made by the Primary Judge, namely that there be “judgment in favour of the plaintiff against the defendants in the sum of $347,470”, and that the orders made in relation to apportionment were simply in the form of a declaration as to the relative contributions of the defendants. The appellant submitted that this form of orders provided support for its contention that the appellant’s claim could have been finally resolved by any individual defendant accepting liability for the amount sought by the appellant.
I was initially attracted to these submissions. However, after careful consideration, I have concluded that the Primary Judge was correct to conclude that there was insufficient clarity in the orders proposed in the Offer of Compromise to satisfy r 1002(2)(a)(ii) of the Rules, which requires that the offer identify “the proposed orders for disposal of the claim or part of the claim …”.
As noted at [2] above, the Offer of Compromise could have been read as an offer made to all three defendants jointly, which could only be accepted by all three acting jointly, or as an offer made to any one of the defendants to accept, whether or not the other defendants accepted the offer. On the appeal, the appellant contended that the second construction was correct.
However, even if the appellant’s construction is accepted, the proposed orders for disposal of the claim remain unclear. In particular, within the construction set out at [2(ii)] above, there are two further possible readings of the Offer of Compromise: (i) That if any one defendant accepted the Offer of Compromise and the others did not, the Court would deliver verdicts in favour of the residual defendants in respect of the plaintiff’s claims; or (ii) That if any one defendant accepted the Offer of Compromise, and the others did not, the Court would still need to determine whether verdicts should also be made in favour of the plaintiff against the residual defendants.
The construction specified at [9(ii)] above would, contrary to the terms of the Offer of Compromise, fail to resolve the “whole” of the plaintiff’s claim. Accordingly, such an offer would fail to comply with r 1002(2)(b)(i) of the Rules, which provides that if an offer only relates to part of the proceeding, the offer must state “whether the remainder of the proceedings would be abandoned or pursued”.
The construction specified at [9(i)] above would resolve the whole of the plaintiff’s claim. However, the terms of the Offer of Compromise were not sufficiently clear to conclude that this should be the preferred construction of the Offer. The outcome specified in [9(i)] could have been particularly disadvantageous to the appellant if the offer were accepted by only one defendant. If a defendant who accepted the Offer of Compromise was later found to lack capacity to pay damages, the entry of verdicts in favour of the residual defendants would preclude the appellant from recovering from other defendants who may have had capacity to pay. The entry of verdicts in favour of the residual defendants may also have had adverse costs consequences for the appellant with respect to the claims made against those defendants. Given these potential adverse consequences, it would have been necessary for the appellant to expressly state in the Offer of Compromise that acceptance of the offer by one or more defendant(s) would necessarily result in verdicts in favour of the remaining defendant(s) for the Offer of Compromise to be so read. The appellant did not do so.
Ultimately, the fundamental defect in the Offer of Compromise is, as the Primary Judge concluded, in its ambiguity. The Offer did not clearly state the proposed orders for the disposal of the appellant’s claim. Accordingly, the Offer of Compromise did not comply with r 1002(2)(a)(ii) of the Rules.
This decision is a salutary warning to solicitors of the importance of precision in the drafting of letters of compromise under r 1002. As the Primary Judge observed (at [23]), Even in a relatively straightforward claim for personal injury, it is highly desirable that r 1002(2)(a)(ii) be complied with by setting out in numbered paragraphs the actual terms of the orders that would be made by the court.
Following this practice will ensure that the requirement in r 1002(2)(a)(ii) is not overlooked.
TAYLOR J:
I agree with the judgment of Ainslie-Wallace AJ and the additional comments of Baker J. AINSLIE-WALLACE AJ: Introduction
Benjamin Tattersall (the appellant) appeals against the refusal of the Primary Judge to make a special costs order consequent on the making of an offer of compromise in proceedings brought by the appellant against Dormakaba Australia Pty Ltd, Zavindi Pty Ltd (trading as Goulburn Roller Doors) and Nathan Flannagan (the respondents, who were the defendants to the proceeding).
The principal proceedings concerned an application for damages for personal injuries sustained by the appellant at work when the chain box for a manually operated roller door fell on his head causing injury and damage. The appellant claimed that the weld which held the box on its mounts was defective causing it to fall and injure him.
The appellant sued four defendants. The first defendant is the company that was responsible for preventative maintenance on the roller door. The fourth defendant is the person who the plaintiff alleged performed the welding which secured the chain box to the building. The third defendant is the company of which the fourth defendant is a director.
Before the hearing in December 2023, on 2 May 2023 the first defendant gave notice to the second, third and fourth defendants claiming contribution or indemnity from them in the case. On 5 December 2023, during the hearing of the proceedings, the third and fourth defendants served notices claiming contribution or indemnity from the first defendant.
Having served the Offer of Compromise, the plaintiff’s claim against the second defendant was settled before the hearing of the suit on terms that there be a verdict for the second defendant against the plaintiff with no order made as to costs. The notices of contribution filed by the second defendant were dismissed with no order as to costs and the first defendant’s notice claiming contribution from the second defendant was also dismissed with no order as to costs.
The plaintiff succeeded in his claim against all three remaining defendants and the Primary Judge found a verdict for the plaintiff against the defendants and ordered damages in the sum of $347,470. His Honour apportioned those damages as to 30 percent the responsibility of the first defendant and 70 percent the responsibility of the third and fourth defendants: Primary Judgment.
Offer to compromise
On 12 October 2023 the plaintiff made an offer to the defendants to compromise the proceedings. There is significance to the appeal in the terms of the offer which we set out here: This is an offer of compromise under Part 2.10 of the Court Procedures Rules 2006. We are instructed to offer to settle this matter in the sum of $245,000.00 plus costs as agreed or assessed. This offer is made in relation to the entirety of the plaintiff’s claim SC 47 of 2023 in the Supreme Court of the Australian Capital Territory. We propose that a verdict be entered for the plaintiff in the above sum plus costs as agreed or assessed at ACT Supreme Court scale. We consider that you have been provided with ample particulars and documents to properly consider this offer however if there is any disagreement we draw your attention to rule 1002(4). Should the Plaintiff obtain judgment no less favourable than this offer, unless the court orders otherwise the plaintiff is entitled to costs assessed on a solicitor and client basis for the whole of the proceeding. This offer of compromise will remain open for a period of 28 days. This offer of [sic] is also made pursuant to the principles in Calderbank v Calderbank. In the event that the verdict in this matter exceeds this amount, we reserve the right to produce this letter with respect to the issue of costs and will seek indemnity costs from the time that this offer is made or expired, whichever is appropriate.
None of the remaining defendants responded to the offer.
As we have said, the Primary Judge delivered a verdict for the plaintiff against all three defendants in a sum greater than the offer.
Rule 1010(2)(a) of the Court Procedures Rules 2006 (ACT) (the Rules) provides that where an offer of compromise is made by the plaintiff in relation to a claim, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer, then in the circumstances of this being a personal injury case, unless the court orders otherwise, the plaintiff is entitled to a costs order against the defendant assessed on a solicitor and client basis for the whole of the proceeding.
The plaintiff’s application for a special costs order based on the offer of compromise was rejected by the Primary Judge: Primary Judgment. It is from this decision that the present appeal is brought.
The Appeal Grounds
The appellant contends that the Primary Judge erred in his interpretation of r 1002 as it applied to the appellant’s offer of settlement made on 12 October 2023 and erred in finding that the offer was not an offer of compromise within the meaning of r 1002.
It is helpful then to set out the relevant rules. 1002 Making offer (1) A party may, by written notice, make an offer to another party to compromise any claim in proceedings, either in whole or in part, on stated terms. (2) An offer under this rule must— (a) 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 the judgment; … (c) not include an amount for costs or state that it is inclusive of costs; and (d) state that the offer has been made in accordance with this part; and (e) state the period of acceptance. The Primary Judge’s determination
Having considered the terms of the offer against the provisions of r 1002, his Honour said: [22] The offer indicated that it related to the entirety of the plaintiff’s claim. The language of the offer is consistent with it being an offer made to all of the defendants jointly. That is indicated by the reference to “the entirety of the plaintiff’s claim SC 47 of 2023”, rather than identifying the offer as relating to the entirety of the plaintiff’s claim against any one of the defendants. [23] The offer did not directly identify the proposed orders for the disposal of the claim. Even in a relatively straightforward claim for personal injury, it is highly desirable that r 1002(2)(a)(ii) be complied with by setting out in numbered paragraphs the actual terms of the orders that would be made by the court. This eliminates any ambiguity as to what is proposed that might arise as a result of any paraphrasing of the effect of the orders. In the present case, because the orders were not set out, the content of the offer being made was not clear and was only able to be determined by inference. (Emphasis added.)
His Honour found that the terms of the offer as it related to the orders for the action’s disposal admitted of two interpretations (at [28]): (a) that it was an offer made to the three defendants jointly, open to be accepted by all of them acting jointly; or (b) that it was an offer made to any one of the defendants to accept whether or not the other defendants accepted the offer.
His Honour concluded that the facts favoured the interpretation that the offer was made to the three defendants jointly because it was addressed to all of the defendants, it was expressed as relating to the entirety of the plaintiff’s claim in SC 47 of 2023 rather than the claim made in relation to each of the defendants and made no reference to any order that would address the circumstance where some but not all of the defendants accepted the offer (at [29]).
His Honour said that if the offer was interpreted as open to being accepted by some but not all of the defendants then: [31] … the offer would not have the effect of resolving “the entirety of the plaintiff’s claim SC 47 of 2023 in the Supreme Court of the Australian Capital Territory”. It would leave unresolved the status of the claim made by the plaintiff against the non-participating defendants. That would leave the plaintiff exposed to the possibility of costs orders in favour of those non-participating defendants. That would be inconsistent with resolving the entirety of the claim through the acceptance of the offer and makes it very unlikely that that is what the plaintiff’s solicitors intended.
Issue on appeal
Rule 1003(3)
Before we turn to the arguments on the issue, it is important to refer to r 1003 which relates to an offer made under the Rules and the offer having been accepted. Rule 1003(3) says: (3) If an offer is accepted under this rule, any party to the offer may apply for judgment to be entered accordingly.
Rule 20.27(3) of the Uniform Procedure Rules 2005 (NSW) is identical in its terms to r 1003(3) and was considered by Garling J in Farmer v Broadspectrum (Australia) Pty Ltd (No 3) [2024] NSWSC 53 where his Honour observed that an offer made under those rules, having been accepted, then any party may apply for judgment accordingly. His Honour observed that neither notice to, nor the consent of the other party is required before judgment on the accepted offer is sought. His Honour continued at [86]: For this reason, at least, clarity of expression and formality of the orders offered, are essential.
The appreciation of the effect of r 1003(3) as enabling judgment to be entered on its acceptance brings into sharp focus the Primary Judge’s attention to the question of whether the offer complied with the provisions of r 1002(a)(ii). The appellant’s arguments
The appellant argued that his Honour erred in finding that the terms of the offer failed to identify the orders for the disposal of the claim because the order proposed in the offer did not identify whether it could be accepted by all defendants acting jointly or by one or more defendants acting alone. It was argued that this was an error because the offer, if entered as a judgment would “entitle the plaintiff to recover the judgment sum from any of the defendants if jointly accepted, or if singularly accepted from that defendant”. The appellant contended that it was “immaterial” whether the offer could be accepted by one defendant alone or by all defendants jointly.
The appellant argued that the Primary Judge’s conclusion would have the effect of requiring the plaintiff to include in the offer orders which dealt with apportionment as between the defendants. This interpretation was said to flow from the Primary Judge’s consideration of the effect if one defendant accepted the plaintiff’s offer and his view that the orders proposed to dispose of the suit should have contemplated that circumstance.
On this last point, the appellant argued that the offer could not have included orders as to costs depending on how the offer was accepted because the provisions of r 1002(2)(c) prohibit the making of an offer which is “inclusive of costs” or specifying an amount of costs, but does not prevent an offer specifying how costs are to be concluded as between the parties.
The respondents argued that while the offer may have been capable of being accepted by one defendant, if it was, it would not dispose of the plaintiff’s claim because it would have the effect of producing a verdict for the plaintiff against the defendant who accepted the offer but no verdict in relation to the plaintiff’s claims against the other defendants. Further, as the defendants had each claimed contribution or indemnity one against the other, the settling defendant would be unable to seek contribution from the other defendants because they were not fixed with liability for the plaintiff’s injury and consequential loss and damage.
Consideration
It is clear that to give effect to the intention of r 1002 and particularly having regard to r 1003(3) it is necessary for the offeror to indicate the orders proposed to dispose of the claim without ambiguity. Where, as here, the offer was such that its intention could only be divined by inference, it was necessarily ambiguous. Even though the Primary Judge found the facts favoured one interpretation of the offer over another, he concluded that where the offer on its face did not provide for the orders necessary to dispose of the action, inferring the offeror’s intention could not cure the inadequacy.
His Honour’s conclusion that the plaintiff’s offer was ambiguous in not indicating the intention as to how the offer might be accepted was entirely correct. Moreover, where the appellant contends that it is immaterial whether one or all defendants accept the offer, it inexorably leads to the conclusion that the proposed order “verdict for the plaintiff” did not identify the orders necessary to dispose of the suit.
If the plaintiff’s offer had been accepted by one defendant only, the terms of the order proposed in the offer would result in a verdict for the plaintiff in the identified sum against that particular defendant. The appellant argued that in that case, while accepting the proposition that there would be no verdict rendered as between the plaintiff and the non-participating defendants, the acceptance by one defendant must, by inference, release the non-participating defendants from their liability to the plaintiff. In our view, to infer the effect of acceptance, of itself demonstrates the fatal ambiguity identified by the Primary Judge.
However, even if that inference was admitted, it would not have the effect of rendering verdicts in relation to the plaintiff’s action against the non-participating defendants nor would it bring an end to any costs orders the non-participating defendants might seek against the plaintiff consequent on the plaintiff settling with just one defendant. The claim would thus not be disposed of in its entirety by the proposed order.
The appeal will be dismissed and we will order the appellant to pay the respondents’ costs of the appeal to be agreed or assessed.
Orders
I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Tattersall
Dormakaba Australia Pty Ltd [2025] ACTCA 30
The appeal was dismissed. The appellant was ordered to pay the respondents’ costs of the appeal, as agreed or assessed ([49]).
His Honour continued and said that while it is possible to infer what probably was the intention of the offer, that is, that it was an offer made to the defendants jointly to be accepted jointly, the offer was nevertheless non-compliant with r 1002 because the offer did not “identify … the proposed orders for disposal of the claim” (at [32]).
As the offer by its terms expressed it to have the effect of a Calderbank offer (Calderbank v Calderbank [1975] 3 All ER 333), his Honour considered whether the letter was sufficient to amount to an offer of compromise, and the failure of the defendants to accept rendered them liable for the plaintiff’s costs. His Honour however concluded that the offer by its terms required it being accepted by all three defendants. In the circumstances where the defendants were not agents of each other, they were not acting unreasonably in failing to accept the offer. There is no appeal from this part of his Honour’s decision.
In the result the Primary Judge ordered that up to and including 1 December 2023, the first, third and fourth defendants pay the plaintiff’s costs on an ordinary basis in the proportions consistent with the liability orders, that is as to 30% to the first defendant and 70% to the third and fourth defendants. His Honour ordered the third and fourth defendants to pay the plaintiff’s cost of the proceedings from and including 2 December 2023.