In Sahade v Bischoff (No 2) [2016] NSWCA 45, the NSW Court of Appeal considered a purported offer of compromise, which related to both an appeal and cross-summons. The offer in this case was a joint offer by the respondents/cross-applicants to the appellants/cross-respondents who were each independent parties with separate causes of action.

The respondents/cross-applicants claimed they were entitled to a special costs order as they ultimately obtained a result no less favourable than the terms of the offer.  However, the appellants/cross-respondents argued the offer did not invoke the costs consequences in the Uniform Civil Procedure Rules 2005 (NSW) because the joint offer was not capable of individual acceptance by only one of the appellants/cross-respondents.

Ultimately, the Court agreed with the appellants/cross-respondents’ submissions, and this reasoning also applied when considering the purported offer of compromise as a Calderbank offer.  This case serves as a good reminder for those involved in multi-party litigation to ensure offers are appropriately framed to gain the benefit of any costs consequences in the Court Rules.