Background
Enyo Lawyers Pty Ltd succeeded in its appeal. In consequential costs submissions, it sought its costs of the appeal on an indemnity basis and its costs of the application at first instance on a standard basis.
Enyo relied on three Calderbank offers made in November 2025, May 2026 and July 2026. The first and second respondents contended that rejecting the offers had not been unreasonable, and that Enyo had not sought its own costs at the hearing before Freeburn J.
The Court’s Holding
The Court of Appeal declined to award Enyo indemnity costs. It held that Enyo had not established that the first and second respondents acted unreasonably in failing to accept the Calderbank offers. The offers raised issues including their conditions, their capacity for independent acceptance, and, in the final offer, the one-day acceptance period.
The Court also declined to determine that Enyo should receive its costs of the application below. Enyo had not sought those costs at the first-instance hearing. Further, inconsistency between its submissions and the draft order had caused significant confusion; in any event, the appropriate first-instance costs order would have been no order as to costs. As the successful appellant, Enyo was awarded its appeal costs on the standard basis, payable by the first and second respondents.
Key Takeaways
- A successful appellant does not automatically obtain indemnity costs after making Calderbank offers.
- The party seeking indemnity costs must establish that rejecting the offer was unreasonable.
- An appellate court may decline to revisit first-instance costs where they were not sought below.
Why It Matters
The decision illustrates that Calderbank offers must be genuinely capable of reasonable acceptance and given on terms that justify an indemnity-costs consequence. Conditions involving other parties and short acceptance periods may prevent that consequence.
It also underscores the importance of clearly seeking costs at the original hearing and ensuring proposed orders align with submissions.