Teng v FEV Mono Constructions

NO HEARING REQUIRED

1. In their written submissions, both the applicant and the respondent agreed that the question of costs may be determined on the papers and without a hearing pursuant to subsection 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

COSTS ORDERS SOUGHT BY THE PARTIES

1. The applicant sought an order that the respondent pay its costs on the ordinary basis, and on the indemnity basis from either 19 February 2021 or 15 August 2021. With respect to the application for costs to be awarded on the indemnity basis, the applicant relied on two "Calderbank" offers, the first dated 19 February 2021 and the second dated 15 August 2021.
2. The respondent submitted that there ought to be no order as to costs, but if there was any order that it pay the applicant's costs, then the Tribunal should not order that those costs be payable on the indemnity basis.

RELEVANT LEGAL PRINCIPLES

1. In their written submissions, both parties accepted that, as these proceedings are in the Consumer and Commercial Division and the amount claimed or in dispute in these proceedings was more than $30,000, the Tribunal may award costs even in the absence of special circumstances warranting such an award: rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. As the Appeal Panel summarised in Carlson v ARA Engine Reconditioning Pty Ltd (No 2) [2020] NSWCATAP 39 at [32] to [35]: Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors that must be taken into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9]. Where proceedings have been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11. In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186, the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion: (1) the starting point is that a successful party should be entitled to an order for costs in his favour; (2) an award of costs is by way of an indemnity and not as punishment; (3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party; (4) the factors to be considered are not to be confined as to do so would constrain the general discretion; (5) the relative success of the parties on different issues and the time taken to determine them may be relevant; (6) the nature of the proceedings is relevant; (7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious.
3. In Mendonca v Tonna [2017] NSWCATAP 176 the Appeal Panel discussed the circumstances in which an indemnity costs order might be made at [59] to [64]: 59. Indemnity costs are only awarded in limited circumstances. The discretion to do so must be the subject of careful reasoning (Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354) and caution should be exercised in making such an award: Leichhardt Municipal Council v Green [2004] NSWCA 341; Ng v Chong [2005] NSWSC 385 at [13]. 60. Other than in relation to the unreasonable refusal of a genuine offer of settlement, one circumstance in which indemnity costs may be awarded is when a case is commenced or continued where there is no chance of success (Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4]), such as where the claim is "without substance", "groundless", "fanciful or hopeless" or so weak as to be futile, such as where a limitation period is obviously at an end: Hillebrand v Penrith Council [2000] NSWSC 1058. However, mere weakness of a case will not be sufficient to warrant an exercise of the discretion to award indemnity costs: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. 61. In this case, Dr Mendonca's fundamental case is that she has a residential tenancy agreement with Mr Tonna and that he owes a significant amount of rent arrears. .... 62. Another circumstance which may warrant an order for costs on an indemnity basis is where the proceedings amount to an abuse of process: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at 362. Examples of abuse of process include where the proceedings are commenced other than in good faith or for an ulterior or collateral purpose: Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352; Packer v Meagher [1984] 3 NSWLR 486 at 500. … 63. An award of indemnity costs may also be made for unreasonable conduct. Such conduct may include unnecessarily prolonging the proceedings, (Degmam Pty Ltd (in liq) v Wright (No 2), at 358); unfounded allegations of fraud or improper conduct (Maule v Liporoni (No 2) (2002) 122 LGERA 216 at 229); deliberate or high-handed conduct (Rouse v Shepherd (No 2) (1994) 35 NSWLR 277) and behaviour which causes unnecessary anxiety, trouble or expense, such as the failure to adhere to proper procedure (FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61-384). Disregard of court orders may justify an indemnity costs order (O'Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 at [35]). Perverse persistence by an unrepresented litigant with a hopeless application may also do so: Rose v Richards [2005] NSWSC 758. 64. Misconduct of a serious nature, such as fraud, perjury, contempt or dishonest conduct may also justify costs being awarded on an indemnity basis: Berkeley Administration Inc v McClelland [1990] FSR 565 at 568-569; Ivory v Telstra Corporation Ltd [2001] QSC 102); Vance v Vance (1981) 128 DLR (3d) 109 at 122.
4. Further, in Eager v North Sydney Retirement Trust (No.2) [2019] NSWCATAP 92 the Appeal Panel said at [26] to [27]: 26. In Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 3) [2017] NSWCA 109 the New South Wales Court of Appeal cited (at [60]) the well known passage from the decision of Justice Shepherd in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (at 230-234) as setting out the principles applicable to an award of indemnity costs: "In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice." 27. In exercising the costs powers the Tribunal must seek to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1) and (2)(a) of the NCAT Act.
5. With respect to "Calderbank" offers, these are made pursuant to the principles set out in Calderbank v Calderbank [1976] Fam Law 93; 3 All ER 333; 3 WLR 586. In Singapore Airlines Cargo Pty Ltd v Principle International Pty Ltd (No 2) [2017] NSWCA 340, the New South Wales Court of Appeal said at [30]: Calderbank offers are a well-established means of parties seeking to compromise proceedings in circumstances where, provided that the offer is a genuine offer of compromise and the opposing party unreasonably rejects the offer, the court may, in the exercise of its discretion, make a special costs order in favour of the offeror.
6. In Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon (No 2) [2018] NSWCATAP 31, the Appeal Panel said at [18] to [20]: In relation to a claim for indemnity costs based on the refusal of a Calderbank offer, a Calderbank offer in more favourable terms that the outcome of proceedings does not of itself entitle the offeror to an order for indemnity costs: Jones v Bradley (No. 2) [2003] NSWCA 258. In Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344, Basten JA identified two questions which are relevant to a Calderbank offer and a claim for indemnity costs. They are whether there was a genuine offer of compromise and whether it was unreasonable for the offeree not to accept it. Basten JA (with whom McColl and Campbell JJA agreed) adopted the non-exclusive list of factors identified by the Victorian Court of Appeal in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 at [25]: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.
7. In Thompson v Chapman [2016] NSWCATAP 6 the Appeal Panel said at [91]: It is common ground that the form of the first offer and second offer were what is known as "Calderbank" offers. From cases such as SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37], Miwa Pty Ltd v Siantan Properties Pty Ltd (No2) [2011] NSWCA 344 and Nu Line Construction Group Pty Ltd v Fowler [2012] NSWSC 816 at [48]. The following principles can be derived in respect of whether a special order for costs should be made: (1) there must be a real and genuine element of compromise; (2) the refusal must be unreasonable; (3) the reasonableness in rejecting an offer must be considered at the time the offer is made, not with the benefit of hindsight; (4) relevant factors in relation to whether the rejection was unreasonable include: (a) the stage of the proceedings at which the offer was received; (b) the time allowed to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for indemnity costs in the event of each rejection.

DETERMINATION

1. I am satisfied that the respondent ought to pay the applicant's costs of the proceedings on the ordinary basis.
2. As set out above, the starting point is that the applicant, as the successful party, is entitled to its costs. However, the respondent submits that the conduct of the applicant and the nature of the proceedings requires that this usual rule be displaced. In short, the respondent submitted that the respondent attempted formally and informally to reach a settlement of the issues in dispute without success and that the actions of the applicant directly prevented this happening, despite the respondent being ready, willing and able to perform the work.
3. I do not accept the respondent's submission for several reasons.
4. First, several of the matters relied on by the respondent in support of its submission are, in my view, either irrelevant or of minimal probative value. For example, the respondent complained that it was not provided with certain building reports, which were obtained by the applicant in 2019 and prior to the commencement of these proceedings, until May 2021, when the applicant served his lay evidence. However, these were not reports relied on by the applicant as expert reports in these proceedings, as the authors of the reports were not called by the applicant as expert witnesses.
5. Similary, whether the applicant served four lists of defects, prior to the commencement of these proceedings, is irrelevant, especially in circumstances where there is no evidence before the Tribunal that the service of those four lists of defects was unreasonable and the applicant was not cross-examined to suggest that it was unreasonable. Likewise, whether the respondent took the initiative to involve the New South Wales Department of Fair Trading in an attempt to resolve the issues in dispute is not a matter that, in my opinion, displaces the entitlement of the applicant to his costs.
6. Second, insofar as the respondent pointed to evidence in witness statements, especially those served by the respondent, that, it said, demonstrated that the actions of the applicant prevented the respondent from reaching a settlement of the issues in dispute, the difficulty with this evidence is that, because none of the witnesses were cross-examined, it had not been the subject of any potential challenge. Accordingly, I give that evidence little probative value.
7. Third, the respondent also referred to two offers it made. The first offer was a "Calderbank" offer made on 10 August 2021 and provided that the respondent would complete all the work identified in two expert reports served by the respondent, save for two items. However, it was not submitted by the respondent that this offer was an offer that was more favourable to the applicant than the outcome of the proceedings, nor was it submitted by the respondent that the applicant was unreasonable in not accepting it. In my opinion, it was not more favourable and the applicant was not unreasonable in not accepting it. The second offer was an open offer made on 16 August 2021, which essentially provided that the respondent would complete the works in the joint report but that the proceedings be discontinued and each party bear their own costs. In my opinion, the applicant was entitled to seek its costs of the proceedings and it was not unreasonable for the applicant not to accept the offer.
8. The respondent also submitted that no order as to costs ought to be made because the applicant's claim had not been heard on the merits. In support of this submission, the respondent referred to the observations by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6.
9. As Brereton JA (with whom Meagher JA agreed) recently said in Nadilo v Eagleton [2021] NSWCA 232 at [8] to [10]: 8 In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin, McHugh J said: "In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties (Australian Securities Commission v Aust-Home Investments Ltd(1993) 44 FCR 194 at 201). To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action (Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201). In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. … If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings." 9 In ONE.TEL Ltd v Commissioner of Taxation, Burchett J explained that the approach endorsed in Lai Qin is applicable in cases involving compromise, where there is no clearly successful party, as distinguished from cases in which one party, after litigating for some time, effectively surrenders to the other, rendering further litigation unnecessary; and that in the latter type of case, the outcome is sufficient to justify an "order otherwise" without it being necessary to demonstrate unreasonableness: "[6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. In Ex Parte Lai Qin, McHugh J was careful to state (at 624) that the principles with which he was concerned were those that "govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means". As his Honour recounted the facts, the instant case was one where the applicant had challenged a decision of the Refugee Review Tribunal denying her status as a refugee but, during the pendency of her action in the High Court, the Minister had exercised his special discretion in her favour under s 417 of the Migration Act 1958 (Cth). The question whether the tribunal had or had not erred in law thus became moot. Sun Zhan Qui v Minister for Immigration and Ethnic Affairs was a similar case. Following the decision of the Full Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, the Minister exercised his discretion under s 417, with the result that an outstanding proceeding in respect of one of several decisions of the Refugee Review Tribunal lost any significance for either party. Beaumont J followed Ex parte Lai Qin. Gribbles v Health Insurance Commission was a variation on the theme. There, the Health Insurance Commission was sued by a pathologist because it declined to recognise particular services as eligible for the payment of Medicare benefits; but during the pendency of the proceeding, certain arrangements affecting the performance of the services were changed, with the result that the Commission reversed its decision. The original dispute thus ceased to have any significance, and the argument about the appropriate costs order had to take place in the absence of any determination of the merits. Again, in Australian Securities Commission v Aust-Home Investments Ltd and in Australian Securities Commission v BeronaInvestments Pty Ltd, as Cooper J put it in the latter case (at 777), "events had overtaken the proceedings". The relief originally sought was no longer required, and the proceedings were terminated without any decision on the merits. Neither side had won or lost (see the former case at 202, and the latter at 777). Reddy v Hughes and Rizal v Minister for Immigration and Multicultural Affairs perhaps each turned even more clearly on an assessment of the reasonableness of a party's behaviour. In Reddy v Hughes, the respondent had offered the applicant a substantially complete remedy before the institution of proceedings, and Branson J held (at 415) that her Honour was "not able to be satisfied that the applicant acted reasonably in commencing the proceeding". In Rizal, although the applicant achieved the result he sought by his proceeding in the Court, there was an "at least arguable" objection to the Court's jurisdiction to entertain the application, and a proposed amendment to overcome the jurisdictional problem would have required leave to file an application long out of time. That leave had not been granted when the proceeding became moot because of the Minister's plainly reasonable decision to reconsider the request the previous rejection of which was the subject and casus belli of the litigation. [7] By contrast with the decisions I have been discussing, the present matter involves a clear winner. The applicants, by their proceeding, sought to challenge the validity of certain notices, and to have them set aside. The respondent, after initially defending those notices, encountered at least an evidentiary difficulty, and acknowledged that they were to be set aside. That means that the applicants have succeeded, just as the respondent succeeded in Ahmetaj v Minister for Immigration and Multicultural Affairs [1999] FCA 332, where a proceeding failed by reason of the occurrence of an event that was always liable to occur and to defeat the proceeding; in those circumstances, Sackville J, when the hearing did not proceed, distinguished Ex parte Lai Qinand made a costs order. As in that case, so here, the result one party sought was achieved without a hearing, but not by a "settlement" in the ordinary sense, or as McHugh J used the word, and certainly not by what his Honour called "extra-curial means". [8] In any event, if, as the respondent contends, I should determine the question of costs by assessing whether, top borrow the language of McHugh J in Lai Qin at 625, "both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation [came to an end by the respondent's decision not to seek to uphold his notices]", I would arrive at the same result. …" 10 In the present case also, there was a "clear winner". The practical result of the case is that the machinery is now noise compliant, and the respondents are bound by order of the Court to keep it compliant in the future. There was no question of compromise; the respondents simply ultimately surrendered: they undertook the works required to render the offending machinery compliant, and had it certified as compliant. Once they did so, the applicant had achieved what she had always sought in the proceedings, rendering further prosecution of the proceedings pointless.
10. Likewise, in the present case, there was also a "clear winner". The practical result of the case is that the respondent is bound to rectify the agreed defects in the joint report, which the respondent did not submit was a result the applicant would not have achieved if the matter had been fully tried. Accordingly, I am not satisfied that this is a matter where it is appropriate to make no order as to the costs of the proceedings.
11. With respect to whether some of the applicant's costs ought to be paid by the respondent on the indemnity basis in light of the two "Calderbank" offers served by the applicant, I am not satisfied that they ought to be.
12. The first "Calderbank" offer required that either the respondent complete all of the work set out in the applicant's expert report dated 17 January 2021 or pay an amount of $156,000. I note that, on 17 January 2021, the applicant had also served a Scott Schedule quantifying the cost of rectifying the alleged defects at $262,015. If the respondent accepted the first option, then the offer proposed that the parties sign consent orders to the effect that the respondent would immediately return and recommence the works and complete the works by a date agreed to by the parties. The first option did not refer to how the costs of the proceedings were to be dealt with. If the respondent accepted the second option, then the offer proposed that the parties agree to have the proceedings dismissed with no order as to costs. I also note that, in the offer, the applicant did not quantify what its costs to the date of the offer were.
13. As a starting point, it is unclear to me how the first "Calderbank" offer was an offer that was more favourable to the respondent than the outcome of the proceedings. As set out above, at the commencement of the hearing on 18 August 2021, the parties informed the Tribunal that the applicant was prepared to accept the amount of $89,148.31, which is plainly a less favourable outcome than the amount of $156,000. Further, the scope of the works to be completed by the respondent pursuant to the work order I made, being the agreed works in the joint report, was a more favourable outcome than the scope of works the respondent would have been obliged to complete in the applicant's expert report dated 17 January 2021. For this reason alone, I am not satisfied that the applicant is entitled to an order for indemnity costs from 19 February 2021.
14. However, I also accept the respondent's submission that, at the time the first "Calderbank" offer was made, the respondent had not obtained its own expert report and so was not in a position to properly assess the applicant's prospects of success. I also consider the terms of the first "Calderbank" offer to be unclear insofar as how the costs of the proceedings were be dealt with if the first option was accepted. Accordingly, in my opinion, the respondent's refusal of the first "Calderbank" offer was also not unreasonable.
15. The second "Calderbank" offer was on the following terms: 1. the respondent rectify the agreed defects in the joint report; 2. the respondent either elect to rectify other defects that the respondent's expert indicated he could not locate, including painting defects, or the applicant would relist the proceedings for those defects to be determined by the Tribunal; and 3. the respondent pay the applicant's costs of the proceedings the ordinary basis as agreed or assessed from 19 February 2021 to 13 August 2021.
16. Again, as a starting point, it is unclear to me how the second "Calderbank" offer was an offer that was more favourable to the respondent than the outcome of the proceedings. The scope of the works to be completed by the respondent pursuant to the work order I made, being the agreed works in the joint report, was a more favourable outcome because it did not include the "other defects" referred to in the second "Calderbank" offer. For this reason alone, I am not satisfied that the applicant is entitled to an order for indemnity costs from 15 August 2021.
17. However, I also accept the respondent's submission that the extent of the "other defects" was unclear. I also consider that the extent of the compromise offered by the applicant, especially when one has regard to the contents of the joint report, was minimal, and that it was not a real and genuine compromise. Accordingly, in my opinion, the respondent's refusal of the second "Calderbank" offer was also not unreasonable.

CONCLUSION

1. For the reasons set out above, I order that the respondent pay the applicant's costs of the proceedings on the ordinary basis as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2022