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  • Successful offers do not always result in indemnity costs.
  • Costs are peculiarly within the court’s discretion.
  • Whether Calderbank offers or offers of compromise, familiarity with key principles is essential.

Nothing excites the zeal, ardour and the passion of the members of the legal profession more than an argument about costs’ (Neilsen DCJ, Manfate Pty Ltd v Krahe [2016] NSWDC 71 at [1]).

The forest of offers of settlement and costs may well be an exciting place, but it is not for the uninformed or ill-prepared. Successful offers do not necessarily result in indemnity costs – keep in mind a court may ‘otherwise order’ on costs.

Costs remain in the court’s discretion. A successful offer provides an opportunity to invoke that discretion to obtain a more favourable costs order.

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