LIQUORLAND (AUSTRALIA) PTY LTD v GYG HOLDINGS PTY LTD AND ORS [1995] NSWCA 261

LIQUORLAND (AUSTRALIA) PTY LTD v GYG HOLDINGS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, HANDLEY and POWELL JJA 27 March 1995, 27 March 1995

[1995] NSWCA 261

PRACTICE AND PROCEDURE — "without prejudice" correspondence — subsequent tender on application for indemnity costs — no reservation of use as per Calderbank v Calderbank [1976] Fam 93 — held: Tender rejected — motion dismissed. COSTS — indemnity costs — offer of compromise in "without prejudice" correspondence — tender of lettters rejected — need to preserve later use as to costs. LEGAL PRACTITIONERS — solicitors practice — use of "without prejudice" correspondence — need to reserve use on costs. PRACTICE and PROCEDURE — "without prejudice" correspondence — tender of in support of application for indemnity costs — no reservation of use in later costs application as per Calderbank v Calderbank [1976] Fam 93 — whether should be received upon the basis that litigation was now concluded relieving the parties of the limitation of "without prejudice" communications — held: (1) The tender of the "without prejudice" correspondence should be rejected. Field y Commissioner for Railways (1957) 99 CLR 285; Calderbank v Calderbank [1976] Fam 93, appld; Permanent Building Society v Wheeler and Ors [No 2] (1992) 10 WAR 569; \AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486 (SC); and Lukies v Ripley [No 2] unreported, Supreme Court (NSW), Young J, 30 August 1994, apprvd and followed; Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd Federal Court (Carr J), 12 May 1994, not followed; (2) Motion accordingly dismissed with costs.

COSTS — indemnity costs — proof of offer of compromise — failure to utilise rules of Supreme Court SCR Pt22 and Pt52 or expedient approved in

Calderbank v Calderbank [1976] Fam 93 — tender of "without prejudice' letters rejected — motion for indemnity costs fails.