Supreme Court New South Wales Medium Neutral Citation: Dream Developments Pty Limited v Samuel Whitney [2012] NSWSC 108 Hearing dates: 13 July 2011 Decision date: 23 February 2012 Jurisdiction: Common Law Before: Adams J Decision: 1.Leave to appeal granted. 2.Appeal upheld. 3.The order as to costs quashed. 4.Within 7 days of the date of this judgment the parties are to file Minutes of Agreed Orders as to costs or, if they do not agree, written submissions on the appropriate orders. 5.The defendant is to pay the costs of the summons (unless a party files written submissions as to costs of the summons within 7 days of the date of this judgment). Catchwords: Costs - UCPR 20.26 - whether offer "exclusive of costs" - whether particulars sought - whether sufficient particulars provided - whether offer could be treated as a Calderbank offer. Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586 Dean v Stockland Property Management Pty Ltd & Anor (No.2) [2010] NSWCA 141 Elite Protective Personnel Pty Limited v Salmon [2007] NCSWCA 322 Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak & Ors [2006] NSWSC 684 Old v McInnes and Hodgkinson [2011] NSWCA 410 Trustee for the Salvation Army (NSW) Property Trust v Becker (No.2) [2007] NSWCA 194 Category: Principal judgment Parties: Dream Developments Pty Limited (Plaintiff) Samuel Whitney (Defendant) Representation: R. Bell (Plaintiff) B. Ilkovski (Defendant) Bay Legal (Plaintiff) Carroll & O'Dea Lawyers (Defendant) File Number(s): 2010/412999 Judgment Introduction 1This an application for leave to appeal from a decision of the Local Court in respect of costs. The issue arose out of proceedings commenced by Dream Developments Pty Limited (the plaintiff) against Mr Samuel Whitney (the defendant) for money owing for the provision of goods and services under a building contract. The plaintiff had issued a final progress invoice for $30,000 of which the defendant paid half and disputed the balance. The plaintiff commenced proceedings in the Local Court for $15,000 plus interest and costs. The defendant admitted that he had not paid the balance of the invoice except for $1,000 (this was not controversial) but claimed that the plaintiff had "failed to perform certain works and services and/or supply goods in accordance with the contract", that the invoice "contained items for work not carried out" and items that had "either not been supplied" or have been supplied but "overcharged". These matters were also contained in a set-off claim of $14,881.59. The defendant cross-claimed for $9,276.59 (comprising $8,395 for repairs and rectification work undertaken by the defendant which should have been done by the plaintiff under the building contract, plus $881.59 representing the addition of the amounts he claimed in his defence less the sum claimed by the plaintiff) plus interests and costs. 2Offers to compromise had been made by the plaintiff to the defendant on 15 April and 9 September 2010 but had not been accepted. The matter was set down for trial in the Local Court on 17 September 2010. At the commencement of the hearing the defendant abandoned his cross-claim and conceded the defects clause did not apply. Judgment was delivered on 15 November 2010 in favour of the plaintiff for $14,000 less $1,000 and, on the cross-claim, "for such sum as is necessary to replace the hearthstone of $1,000, whichever is the lesser". The Magistrate concluded that the offers did not comply with Rule 20.26 of the Uniform Civil Procedure Rules 2005 and were not Calderbank offers, thus ordering the defendant to pay costs of $3,500 rather than indemnity costs. 3This appeal concerns the Magistrate's findings as to the plaintiff's written offers to settle. The plaintiff's offers 4On 15 April 2010 the plaintiff made an offer of compromise as follows - This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005. The Defendant [plainly a typographical error for "Plaintiff"] offers to settle the Plaintiff's claim against the Defendant on the following basis: (a). The Defendant to pay the Plaintiff $12,000 within days of written acceptance of this offer. (b). The Defendant to pay the Plaintiff's costs as agreed or assessed. (c). These proceedings be dismissed. This offer is open for acceptance until 5.00pm Friday 14 May 2010, being at least 28 days from the making of this offer of compromise after which it will lapse. 5On 9 September 2010 the plaintiff's solicitors made a further offer described as a "final offer of compromise" in the following terms - This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005. The Defendant [again an error for "Plaintiff"] offers to settle the Plaintiff's claim against the Defendant on the following basis: (a). Judgment for the Plaintiff. (b). The Defendant to pay the Plaintiff $14,000 within 28 days of written acceptance of this offer. (c). The Defendant to pay the Plaintiff's costs as assessed or agreed. This offer is open for acceptance until 5.00pm Tuesday 14 September 2010 which, given the matter is listed for hearing on Friday 17 September 2010, is a reasonable time from the making of this offer of compromise, after which it will lapse. 6The defendant did not accept either offer but it is common ground that, on or about 16 September 2009, his solicitors informed the plaintiff's solicitors that he would concede judgment against him for $14,000. When the hearing commenced, counsel for the defendant informed the court that "there would be no contest" about the balance of the plaintiff's claim for $14,000 and offered to consent to judgment in that sum plus $14,000 costs. As to the cross-claim, he offered to accept judgment in the defendant's favour for $2,500 with no order as to costs. These offers not being accepted, that left the counterclaim and the effect of the plaintiff's offers to be determined. The proceedings were stood over part heard to 8 October 2010, in the meantime the plaintiff providing certain documents. On 8 October 2010 the Local Court reserved its decision and written submissions were made by the parties on the effect of the two offers of compromise and the meaning of the term "defect". On 15 November 2010 the Local Court gave judgment as mentioned above. Making an offer under UCPR 7The relevant part of the Rules is as follows - 20.26 Making of offer (cf SCR Part 22, rules 1A, 2, 3 and 4; DCR Part 19A, rules 1, 2, 2A, 3 and 4; LCR Part 17A, rules 2 and 5) (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 must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs. (3) A notice of offer: (a) must bear a statement to the effect that the offer is made in accordance with these rules, and (b) 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 the payment so made or ordered. (4) Despite subrule (1), a plaintiff may not make an offer unless the defendant has been given such particulars of the plaintiff's claim, and copies or originals of such documents available to the plaintiff, as are necessary to enable the defendant to fully consider the offer. (5) If a plaintiff makes an offer, no order may be made in favour of the defendant on the ground that the plaintiff has not supplied particulars or documents, or has not supplied sufficient particulars or documents, unless: (a) the defendant has informed the plaintiff in writing of that ground within 14 days after receiving the offer, or (b) the court orders otherwise. (6) An offer may be expressed to be limited as to the time it is open for acceptance. (7) The following provisions apply if an offer is limited as to the time it is open for acceptance: (a) the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial, (b) the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than 2 months before the date set down for commencement of the trial. (8) ... (9) ... (10) ... (11) ... (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. 42.14 Where offer not accepted and judgment no less favourable to plaintiff (cf SCR Part 52A, rule 22; DCR Part 39A, rule 25) (1) This rule applies if the offer concerned is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim concerned no less favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim: (a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and (b) 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. Were the offers "exclusive of costs"? 8Uninstructed by authority, it would be my view that both offers were exclusive of costs. To my mind, the phrase limits the nature of the compromise so that it is not to involve any compromise on the question of costs. Had it been intended that the letter of offer should not mention costs, this would have been easy to say so. The rule reflects a longstanding mode of communicating offers which indicate either that costs is included or excluded. The fundamental point, as I read the Rule, is that changing the usual order as to costs is not a part of the proposed settlement. It may well be thought to be necessary to mention the matter of costs, however, since otherwise the silence might be thought to propose no order as to costs, which is a common expression connoting that each party is to pay its own costs. In the present case, each offer stipulated, in substance, that the plaintiff was not compromising on the question of costs, which were to be paid as assessed or agreed, a reflection of the usual order as to costs to be made in the event of the plaintiff's obtaining judgment in its favour. Of course, the only circumstance in which the offer, if not accepted, would come to be considered is that situation, with the concomitant costs order. The use of the word "agreed" adds nothing, of course, since the parties are always able to agree rather that have costs assessed. If anything, its inclusion makes it clear that the offer does not include a proposed agreement as to costs. 9I am gratified to find that McDougall J, dealing with a not relevantly dissimilar offer, though in somewhat different language, concluded that it, also, was exclusive of costs: Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak & Ors [2006] NSWSC 684. There, the offer of compromise, expressly made pursuant to Part 20 Rule 26 of the UCPR, contained an offer by the defendants to pay the sum of $10,000 "plus costs as agreed or assessed" in full satisfaction of any claim the plaintiff had against the defendants. The issue was whether the offer was still open at a particular time. If it complied with UCPR 20.26, sub-rule (7) gave a reasonable time for acceptance. McDougall J stated - "[19] It will be observed from r 20.26(2) that in the present case (the offer not being one for a verdict for the defendants) the offer must be exclusive of costs. That I take to mean that the amount of the offer must be exclusive, and not in any way inclusive, of costs. [20] In the present case, the settlement amount offered was in my view $10,000. Paragraph 1 made it clear that that sum did not include, or was not to be taken to include, costs. That is because it said that the sum of $10,000 was "plus costs as agreed or assessed". [21] It was not necessary for the offer to refer to costs. The statement that the offer was made in accordance with "Pt 20 r 20.26" (quoting from para 2) makes it plain that r 20.26(2) applies; and in circumstances where, as I have said, the offer was not one of a verdict for the defendants, that makes it plain that the offer was exclusive of costs. [22] Nonetheless, it does not follow that because the offer made plain (or sought to make plain) that which was in any event the fact, it was thereby converted from being what it was intended to be - an offer made pursuant to the rules - into something else - an offer not made pursuant to the rules." Amongst other things, it had been submitted that, the reference to costs in the offer introduced an ambiguity, because it was not clear whether the costs referred to were up until the date of the offer or up until the date of acceptance and, accordingly, the offer was outside the Rules. McDougall J considered firstly that, the offer being "exclusive of costs" it complied with the requirements of Rule 20.26(2) and "if the reference to costs introduced an element of ambiguity as to the extent of those costs, this would not detract from the position that the offer was intended to be, as in my view it is, one exclusive of costs.... [and the] only debate would be as to the extent of costs recoverable." His Honour held that the purported ambiguity could be resolved by construction so that, as the offer twice asserted that it was made pursuant to the Rule, the proper construction of the reference to costs "is that it means costs in accordance with the rules". It followed that the period for acceptance was governed by Rule 20.25 and thus, expired before the purported acceptance. 10However, the rule has been considered in other cases, to which I now turn (noting that it is an indictment of drafting where the language chosen has led to extensive litigation). 11In Trustee for the Salvation Army (NSW) Property Trust v Becker (No.2) [2007] NSWCA 194 two offers of compromise had been made by the plaintiff/ first cross-defendants of "the whole of the proceedings" by consenting to orders as to the grant of probate, the costs of the plaintiff/ first cross-defendant on an indemnity basis be paid out of the estate and that the costs of the second and third defendants/ first and second cross-claimants agreed in a sum of $100,000, be paid out of the estate with interest at UCPR rates to run on so much as the costs as remained unpaid for more than four months after the making of the orders. This offer was expressed to have been made in accordance with the rule in Calderbank v Calderbank [1975] 3 WLR 586. 12Having regard to the early date of the offer and its consequential early acceptance period, Ipp JA (with whom Mason P and McColl JA agreed) held that it could play no part in the exercise of the discretion to order indemnity costs. A second offer, intending to be a formal offer of compromise made in accordance with Part 20 Division 4 of the UCPR, concerned the proceedings in the Court of Appeal. The first respondent offered to compromise the whole of the proceedings by consenting to the following orders - 1. Appeal dismissed. 2. Confirm Orders made by Nicholas J on 25 July 2006 and 2 November 2006. 3. The costs of the appellants be paid out of the estate of the deceased on the part[y]/party basis. 4. The costs of the first respondent be paid out of the estate of the deceased on the indemnity basis. The last paragraph of the offer stated that, if the UCPR was not applicable to offers of compromise in probate proceedings, the offer should be treated as a Calderbank offer. 13The appellants contended that the offer was "invalid" by reason of UCPR 20.26(2). The Court held that Parts 20 and 42 of the UCPR applied to probate proceedings and, accordingly, to the second offer but that it was inclusive of the costs of the proceedings and, accordingly, no effect could be given to it under the UCPR. However, the offer was not thereby invalid and was able to operate as a Calderbank offer, providing the intention that it should do so is revealed by its terms. Thus, if the offer discloses an intention that it should take effect only if it complied with the Rules, then its failure to do so rendered it ineffectual whilst, on the other hand, if it disclosed a general intent to make an offer, irrespective of whether it was effective under the Rules, then it would be capable of being accepted by the other party as an informal Calderbank offer and should be regarded as such. Accordingly, the offer being a genuine compromise which was unreasonably rejected by the appellants, should have costs consequences. 14In Dean v Stockland Property Management Pty Ltd & Anor (No.2) [2010] NSWCA 141 the offer of compromise was in the following terms - To the Respondents: - The Appellant offers to compromise this matter on the following bases - (1). appeal allowed; (2). verdict and judgment in the Court below set aside; (3). proceedings remitted to the District Court for retrial; (4).each party to pay its own costs of the appeal; (5). costs of the first trial to follow the event of the second trial. This offer is open for twenty-eight (28) days and thereafter is withdrawn. If this offer is not accepted in the manner prescribed by the Rules of Court and Judgment on this claim ultimately is not less favourable than this offer the Plaintiff shall seek an Order against the Defendant for costs from the date of this offer on an indemnity basis. This offer is made in accordance with Part 20 Rule 26 of the Uniform Civil Procedure Rules. The second respondent resisted the costs order, contending that the offer was not exclusive of costs as required by UCPR 20.26(2) and, secondly, that it was not open for it to accept the offer because of the operation of Rule 51.5(3) of the UCPR. The Court said - "[18] In Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 348 at 350 - 351 it was held that a defendant's offer of compromise of a money sum inclusive of costs was ineffective, because it conflicted with r 52.17(1) (plaintiff's entitlement to tax costs if the offer was accepted) and by r 52.17(2) a term negating or limiting the operation of r 52.17(1) was of no effect. The perceived rationale was that, without a taxation of costs, it could not be determined whether the offer of compromise was more or less favourable than the result, because it was not known how much of the money sum should be attributed to costs. [19] Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd was followed in later decisions on slightly amended rules, for example Warkworth Mining Co Pty Ltd v O'Connor [1996] NSWCA 546 (Priestley JA); Optus v Leighton [2002] NSWSC 450 (Hunter J). In the context of Calderbank offers, it has also been held that an offer inclusive of costs placed the offeree in a position of not being able to determine the appropriate amount to attribute to the substantive claim and the costs in incurring it, which bore upon its operation (see Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runnoff Ltd (formerly GIO Insurance Ltd) [2006] NSWSC 583 at [40] and cases cited). [20] It should be appreciated that Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd turned upon r 52.17(1) and (2), and the inconsistency between the offer and the provisions of the rules with respect to costs. In many cases it can readily be determined, without an assessment of costs, whether the offer of compromise is more or less favourable than the result. It might be self-evident from the figures. There might be evidence of estimated costs - particularly since lawyers have been required to provide costs estimates to clients. Under the Supreme Court Rules, the perceived rationale did not operate of itself. [21] The UCPR regime differs in some respects from that of the Supreme Court Rules. Broad equivalents to r 52.17(2) and (2) are found in rr 42.13A and 20.26(12). But the position of an offer which is not exclusive of costs is now specifically governed by r 20.26(2). [22] The continued reasoning of inconsistency between an offer and the provisions of the UCPR with respect to costs has been recognised in Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (No 2) [2007] NSWCA 194 at [23] and Atkinson v Zey [2008] NSWCA 30 at [7]." 15The Court went on to say - "[26] The governing reasoning is inconsistency between an offer of compromise and the provisions of the rules with respect to costs. An offer of compromise involving costs will not necessarily be of no effect by force of r 20.26(12), because the costs will not necessarily be inconsistent with a plaintiff's (or defendant's) entitlement to an order for costs. But even in cases not involving payment of a money sum, such as the present case, there will be the inconsistency. And the language of the rule does not confine exclusivity to only some kinds of offers of compromise. The phrase "exclusive of" means "excluding, not compromising of"; "that excludes"; or "so as to exclude" (Colonial Mutual Life Assurance Society Ltd v Australian and Overseas Telecommunications Corporation Ltd (1993) ANZ Conv R 347). On a natural reading, the requirement that an offer of compromise be exclusive of costs means that it may not involve costs at all." 16In my view, the offer of compromise here was indeed exclusive of costs in the sense that it involved no compromise on costs, in other words, the compromise involved only the money claimed and did not involve the costs at all although it stipulated that the plaintiff required costs as agreed or assessed. I do not understand anything in either Becker or Dean that would lead to a different conclusion. Practice Note 2 of 2007 17It was submitted in the Local Court and here by counsel for the defendant that the provision in the offer concerning costs was inconsistent with the Practice Note - and, hence, introduced an element of compromise - or made the offer so uncertain or ambiguous as not to comply with UCPR 20.26. The Practice Note, which applied to the present case, indicated a limitation on the maximum amount of costs that would generally be awarded in proceedings where the amount claimed is $20,000 or less. Paragraph 3 states, inter alia - "... Maximum costs should NOT be considered as the standard amount to be awarded. Costs will be subject to agreement or assessment in appropriate proceedings, however, the amount of costs should not exceed the maximum unless the court otherwise orders." Paragraph 4.4 specifies that that the award of costs will not exceed, where the plaintiff succeeds, 25% of the amount awarded by the court. Although this may be varied in accordance with paragraph 6, no variation in accordance with that paragraph was sought and no such variation was proposed in the offers. Paragraph 7 provides that the "Note does not affect the power of the court to exercise its discretion to depart from the orders specified herein or make orders for indemnity costs in appropriate cases." 18It was submitted by counsel for the defendant that the offers "purport to confer an entitlement to costs larger than that conferred by the Practice Note". In my view this is not so. The offers, plainly enough, assume a costs assessment in accordance with the relevant applicable process, thus complying with the Practice Note. As I have already found, the language of the offers do not suggest any compromise on the question of costs, which (if the offers were not accepted) were left to be determined in accordance with law. 19It is also contended that the court cannot determine whether the offers were not more favourable in view of the Practice Note than the judgment and costs order. It is argued that, at the time of making the costs order, the court below could not know what an assessor would allow as reasonable costs and what amount the parties would agree. Accordingly, it is said, that whether the term in the offers as to costs was no less favourable than the maximum costs order would be speculative. Since however, as I have already said, the offers were exclusive of costs, the plaintiff proposing that that matter be determined in the conventional way and without compromise, this argument also must fail. 20The defendant's notice of contention submits that the judgment and costs order were less favourable to the plaintiff than the offers because the costs order applied the Practice Note and the offers should be understood as seeking to costs not so limited. Since the offers did not involve costs, this argument must fail. At all events, the reference to assessment must mean that this was to be done in accordance with the applicable procedures, including the Practice Note. Sufficient particulars 21By its notice of contention, the defendant submits that the defendant believed that the basis of the plaintiff's claim was for a number of specified items for which he believed were overcharges made and thus that his account was in credit and had "on numerous occasions" requested relevant information to enable a resolution of the claim but that adequate information was not forthcoming. It is also contended that the time limited for acceptance of the second offer, namely three business days, was unreasonably short. In light of the finding as to non-compliance with Rule 20.26, it was not necessary for the learned Magistrate to determine, under sub-rule (4) whether the defendant had "been given such particulars of the plaintiff's claim, and copies or originals of such documents available to the plaintiff, as are necessary to enable the defendant to fully consider the offer". 22I was invited by the defendant to peruse some four volumes of material and extensive evidence given in the Local Court to determine this issue, in the event that I was satisfied that the offers complied with the Rules. I indicated that I was not prepared to consider this volume of material and, unless the matter could be briefly disposed of, the appropriate order would be to remit this question to the Local Court for consideration. I asked for further submissions pointing to the particular relevant correspondence. 23The starting point is the prohibition in sub-rule (5), of a party utilising sub-rule (4) if notice of the ground has not been given within 14 days of the offer or the court otherwise orders. Although a number of requests for information and particulars had been made by the defendant over the period of the dispute, none responded to either offer. On 24 August 2010 the defendant's solicitors wrote to the plaintiff's solicitors saying that their client was considering the "most recent offer" to settle the proceedings and requested certain information as to electrical works, payments to subcontractors and an invoice which was, as it appears, provided on 25 August 2010. It was contended that this response was inadequate but no follow-up letter conveyed this message to the plaintiff's solicitors. Whether the response was inadequate or not, the request certainly did not relate to the first offer (and obviously not to the second). On 16 September (the second offer having lapsed the previous day) the defendant's solicitors requested a copy of a costs schedule. This letter does not suggest that the schedule was required for the purpose of considering the offer; indeed, it is obvious, that it was simply required for the hearing set down for the following day. Accordingly, even if it had preceded the lapse of the offer, this would not have amounted to a request within sub-rule (5). It is clear that there is a significant difference between the extent of information necessary to consider an offer and that needed to conduct a case. To complete the references in the defendant's supplementary submissions, I should mention that further documents were sought at the hearing on 17 September. On 1 and 7 October 2010 the plaintiff's solicitors provided further material. 24Accordingly, the defendant has not satisfied the requirements of sub-rule (5) and, subject to an order, cannot rely on sub-rule (5). 25Nor is this a case in which the Court should vary the effect of the sub-rule. As the defendant's submissions disclose, the building work in question involved a cost of a little less than $143,000.The particular progress claim in question was issued on 31 October 2008 for $30,000, of which $15,000 was paid by the defendant on 7 November 2008. It is fair to infer that he would not have paid this sum had he not examined the claim and decided how much of it was payable. Work was suspended under the contract on 20 November 2008 and the contract was ultimately terminated on 12 February 2009. On 9 April 2009 the defendant paid an additional $1,000 against the progress claim "as a sign of some compromise". This again required, as it seems to me, a reasonable degree of understanding about the matters in dispute. As I have already mentioned, the defence to the statement of claim filed on 15 March 2010 alleged, amongst other things, that the plaintiff "had failed to perform certain works and services and/or supply goods to [the defendant] under the building contract" and that the progress claim was for "items of work not carried out by" the plaintiff and claimed payment for items that had either not been supplied or had been supplied but for which an excess charge was made. 26On 9 February 2010 the defendant's solicitors sought further and better particulars of the plaintiff's claim including "a schedule listing the items of work and the costs of each item relating to the invoice" of $30,000 which had been referred to in the plaintiff's statement of claim. The reply of 25 February 2010 which gave details of other particulars sought attached the tax invoice but, so far as I can see, no schedule. However, there is nothing to suggest that the defendant was unable to prepare a defence for lack of particulars. I have mentioned that it was filed on 5 March 2010. Aside from the letters of 24 August and 16 September 2010, which appear to have been sufficiently answered, no further requests for information were made. Nor is it insignificant that, when the matter came on for hearing, the defendant consented to judgment on the plaintiff's claim. I am not satisfied that, whatever the position was as to readiness for trial in respect of some detail or other, the defendant had sufficient information to enable him to consider both of the offers. 27In building cases, no doubt many hours of innocent pleasure can be passed in the contemplation of each particular matter of controversy. But this was a domestic dwelling and the details of the works would in all probability have been well understood by the defendant, who evidently took a close interest in progress. I accept it may well be that precise accounting may not have been possible with the information he had to hand but I do not accept that he did not have sufficient information to give adequate consideration to the offers. Accordingly, he has not satisfied me that an order varying the effect of sub-rule (4) should be made. 28As to time, it seems to me that the time frame for the second offer was reasonable, in light of the proximity of the date for trial. Moreover, no suggestion was made in response to the offer that further time was needed. Calderbank offers 29The learned magistrate held that, since the offers were expressed to be made pursuant to UCPR 20.26 and no mention of another basis for compromise was mentioned, they should not be treated as Calderbank offers. Although it is not strictly necessary for me to deal with this question, I think it is useful to briefly discuss it. I do so because of my concern that this matter, indeed the whole question of attempting to compromise proceedings - plainly in the public interest - has become bedevilled by nice distinctions and unnecessary technicalities. I start from asking rhetorically how it could possibly be in the interests of a party to make an offer pursuant to the Rules and yet, in the event that, for some reason, the offer be held not to comply, nevertheless to wish the offer to be completely ignored. An offer which complies with the Rules must necessarily comply with the requirements of a Calderbank offer, though of course, the obverse is not the case. To my mind an offer that purports to comply with the Rules will, unless it is very strangely worded, always amount to an offer to compromise. I cannot understand, if this is so, it should be inferred otherwise than that it should be dealt with on its terms and, therefore implicitly evince an intention to make a Calderbank offer. After all, Calderbank offers are scarcely complicated. No actual mention of Calderbank is necessary. No doubt they are also subject to somewhat similar (though not identical) limitations on the issues of costs and, in that sense, they must be capable of clearly indicating the line which marks whether, in the result, the party does or does not do no worse than the offer. As was said in Dean at [20], "In many cases it can readily be determined, without an assessment of costs, whether the offer of compromise is more or less favourable than the result". I would also respectfully refer to the discussion of this issue by Basten JA in Elite Protective Personnel Pty Limited v Salmon [2007] NCSWCA 322, and see Beasley JA infra at [7]. However, reference should also be made to Old v McInnes and Hodgkinson [2011] NSWCA 410, in which Meagher JA (with whom Giles JA agreed, Beazley JA contra) concluded (at [106]) that an offer purporting (but, in the result found not) to be made pursuant to the Rules, which did not mention that it was otherwise intended as a Calderbank offer, could not "in the circumstances" be relied on. Orders (1)Leave to appeal is granted. (2)The appeal is upheld. (3)The order as to costs is quashed. (4)Within 7 days of the date of this judgment the parties are to file Minutes of Agreed Orders as to costs or, if they do not agree, written submissions on the appropriate orders. (5)The defendant is to pay the costs of the summons (unless a party files written submissions as to costs of the summons within 7 days of the date of this judgment). ********** 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: 31 October 2012