What Is a Calderbank Offer in a NSW Family Provision Claim?
A Calderbank offer is a written settlement offer made “without prejudice save as to costs” in a NSW family provision claim. It can shift legal costs to the rejecting party if the rejection is later assessed by the Supreme Court of NSW as unreasonable.
Calderbank offers sit alongside formal UCPR offers of compromise as a powerful settlement tool. Empower Wills and Estate Lawyers advises claimants and executors on family provision settlement strategies across NSW. This guide explains how Calderbank offers work and when to use them.
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Where Calderbank Offers Come From
The Calderbank offer takes its name from the 1975 English Court of Appeal decision in Calderbank v Calderbank [1975] 3 All ER 333. The case established that a written settlement offer marked “without prejudice save as to costs” could later be relied on to seek indemnity costs if the offeree rejected it unreasonably and ultimately did worse at trial.
Australian courts adopted the principle, and it now operates throughout NSW litigation, including family provision proceedings in the Probate and Family Provision List of the Supreme Court of NSW.
Calderbank offers sit alongside the formal offer of compromise regime under Part 20 of the Uniform Civil Procedure Rules 2005 (NSW). Both serve the overriding purpose under section 56 of the Civil Procedure Act 2005 (NSW), which requires the just, quick, and cheap resolution of disputes.
More: Cost of Contesting a Will in NSW
Calderbank vs UCPR Offers of Compromise: The Key Differences
Both mechanisms encourage settlement, but they operate differently. Choosing the right one matters because the costs and consequences depend on which form is used:
| Feature | Calderbank Offer | UCPR Offer of Compromise |
| Source | Common law (Calderbank v Calderbank) | Rule 20.26 UCPR |
| Form | Written, marked “without prejudice save as to costs” | Notice of offer in prescribed form |
| Costs affect if accepted | Whatever the offer states, typically each side bears its own costs | Rule 42.13A: offeree pays offeror’s costs on ordinary basis to date of acceptance |
| Costs affect if rejected | Court considers whether rejection was unreasonable; indemnity costs possible | Rules 42.14 and 42.15: automatic costs consequences, subject to court discretion |
| Discretion | Wide; court weighs reasonableness | Narrower; rule-driven outcome |
| Use case | Where a formal offer is impractical, or the terms do not fit Part 20 | Where parties want certainty of cost outcomes |
In practice, well-advised parties often make both kinds of offers simultaneously to maximise cost protection.
How a Calderbank Offer Works in Family Provision Claims
Calderbank offers are particularly common in NSW family provision matters because the costs jurisdiction is more discretionary than in commercial litigation. The offer process moves through clear steps.
Drafting the Offer
The offer must be in writing, identify the proceedings, set out the proposed terms clearly, and be marked “without prejudice save as to costs”. A statement explaining why the offer is reasonable and a reasonable time for acceptance must be included.
Service on the Offeree
The offer is served on the opposing party through their solicitor. Service should leave a clear record. Many practitioners send by email and follow up with hard copy delivery.
Time for Acceptance
A reasonable time for acceptance is required. Family provision matters typically allow 14 to 28 days, depending on the stage of proceedings and the complexity of the issues to be considered.
What Happens If Accepted
If the offeree accepts, the proceedings settle on the terms of the offer. The matter is finalised by consent orders filed in the Supreme Court of NSW. Costs are dealt with as the offer provides.
What Happens If Rejected
If the offeree rejects the offer (or lets it lapse) and the matter proceeds to a hearing, the offeror may rely on the rejected Calderbank offer after judgment when costs are argued. The court considers the offer alongside the result.
What Makes an Offer Reasonable (and What Doesn’t)
Reasonableness is the central test for whether a Calderbank offer will shift costs. NSW courts consider the circumstances at the time the offer was made, not what is later known. Factors that weigh on reasonableness include:
- A genuine compromise. The offer must represent a real concession, not a token attempt to manufacture cost leverage. An offer of $99,999 to settle a $100,000 claim is unlikely to qualify, as confirmed by NSW authorities, including Tickell v Trifleska Pty Ltd (1991) 25 NSWLR 353.
- Sufficient information. The offeree must have had enough information to assess the offer. Offers made too early in a family provision matter, before affidavits are exchanged, often fail this test.
- Clear terms. The offer must be specific on the amount or form of provision proposed, the treatment of costs, the time for acceptance, and any conditions. Ambiguity weakens the costs argument.
- A reasonable time to consider. The offeree must have a fair opportunity to take advice and respond. Very short windows in complex matters undermine reasonableness.
- The strength of the case. Where a party’s case is strong, a modest offer may still be reasonable. Where it is weak, even a generous offer may not unlock indemnity costs if reasons existed to reject.
- The size and complexity of the estate. A small or modest estate constrains what is reasonable. Large estates with notional estate elements often justify more substantial offers.
The court’s assessment is fact-specific. There is no fixed formula, but documenting reasonableness contemporaneously strengthens the later costs application.
More: What Happens at a NSW Supreme Court Family Provision Hearing?
Costs and Consequences of Rejecting a Calderbank Offer
If a Calderbank offer is unreasonably rejected and the rejecting party does worse at the hearing, the court can order costs on a more favourable basis. The framework varies depending on who made the offer.
Plaintiff’s Offer Rejected by Defendant
If the plaintiff’s offer is rejected and the plaintiff does as well as or better than the offer at the hearing, the court may order indemnity costs against the defendant from the date the offer was made or expired. This mirrors but is distinct from the formal regime under rule 42.14 of the UCPR.
Defendant’s Offer Rejected by Plaintiff
Where the defendant’s offer is rejected, and the plaintiff fails to obtain a more favourable result, indemnity costs can be awarded against the plaintiff. The formal counterpart is rule 42.15 of the UCPR.
Family Provision Specific Considerations
Family provision costs orders are more discretionary than in commercial matters. Courts consider the family context, the reasonableness of bringing or defending the claim, and the size of the estate. An unreasonable rejection may still produce an ordinary costs order rather than indemnity costs if the wider context warrants restraint.
Costs Out of the Estate
Successful claimants often have their costs paid out of the estate. A failed Calderbank rejection does not necessarily change that, but it can affect the basis of the order or the apportionment between the estate and individual beneficiaries.
Strategic Use: When to Make and Accept Calderbank Offers
Calderbank offers are most effective when timing, content, and execution are aligned. Strong settlement practice includes the following:
- Make the offer after the evidence exchange. Offers made after affidavits and disclosures have been exchanged carry more weight on reasonableness. The offeree cannot complain of insufficient information.
- Pair with a formal offer. Where the terms permit, running a Calderbank offer alongside a UCPR offer of compromise maximises cost protection regardless of which mechanism the court favours.
- Express the reasoning. Set out briefly why the offer is reasonable, by reference to the strength of the case, the estate’s size, and the costs that will be incurred if the matter proceeds.
- Renew before key procedural milestones. New offers before mediation, before the close of evidence, or before hearing can sharpen the costs consequences if the matter does not resolve.
- Take advice before rejecting. The decision to reject a Calderbank offer carries a real cost risk. Document the reasoning so the court can later see why the rejection was reasonable.
- Consider counter-offers. A reasonable counteroffer that is itself rejected can provide cost protection in the opposite direction.
Speak to a Family Provision Settlement Lawyer
If you have received or want to make a Calderbank offer in an NSW family provision claim, call Empower Wills and Estate Lawyers on 1300 414 844. Our specialist practice advises claimants and executors on settlement and costs strategy across NSW. A well-timed Calderbank offer can save tens of thousands in costs. We discuss fee options at the first consultation, including payment plans, sliding scales, pensioner discounts, and no-win, no-fee arrangements where the matter qualifies. Disbursements and barrister’s fees remain payable in all cases.
Frequently Asked Questions
Is a Calderbank offer the same as an offer of compromise?
No. A Calderbank offer is a common law mechanism made “without prejudice save as to costs”. A UCPR offer of compromise is a formal offer under rule 20.26 with prescribed form and automatic costs consequences. Both serve settlement.
Can a Calderbank offer be withdrawn?
Yes. A Calderbank offer remains open only for the time specified, and the offeror can withdraw it before acceptance. Once withdrawn, it cannot be relied on for costs unless a court finds rejection was unreasonable at the time.
Does the court see the Calderbank offer before judgment?
No. The offer remains confidential until judgment is delivered. After judgment, the offer is produced when costs are argued. Family provision judges, therefore, decide the merits without knowing the offer terms.
How long should a Calderbank offer be open?
There is no fixed period. Family provision practice typically allows 14 to 28 days, depending on the matter. The time must be reasonable, having regard to the stage of proceedings and the complexity of the issues.
What if neither party made a Calderbank offer?
The general cost rules apply. Costs in family provision matters are discretionary, with the unsuccessful party often bearing some costs, but the estate frequently pays a successful claimant’s costs.
Do Calderbank offer work in mediation under Practice Note SC Eq 7?
Yes. Settlement discussions at mediation are confidential, but Calderbank offers can be made before, during, or after a court-annexed mediation. Many parties make Calderbank offers shortly after mediation if no resolution is reached.
