The Tort of Passing-Off
In Australia, the tort of passing off involves one party misrepresenting another party’s goods or services as their own. Learn the elements to establish a cause of action in passing-off.
A “Calderbank” offer is a certain type of settlement offer. Often multiple settlement offers are made by both plaintiffs and defendants during the course or proceedings. A settlement offer, other than having the benefit of potentially settling a dispute, also has the benefit of attempting to protect your legal costs.
A Calderbank offer is derived from an old English Court of Appeal case “Calderbank v Calderbank”. In that case, the wife made a reasonable offer to settle the dispute. The husband rejected the offer, and the wife ended up with a better result at court. The judge considered that the husband was unreasonable by rejecting the offer.
Calderbank offers are now accepted in almost all disputes in Australia, but usually not in criminal proceedings.
This article provides some ‘elements’ and ‘rules’ about Calderbank offers. We use these terms loosely, because failing an element may not necessarily cause a Calderbank offer to be ineffective, however, failing to follow the elements and rules will jeopardise the validity of a Calderbank offer and should be adhered to whenever possible.
The following rules and elements should assist in drafting an effective Calderbank offer:
Where possible, try to:
To rely on a Calderbank offer for indemnity costs you have to show that the other party unreasonably or imprudently rejected the offer. In order to establish this, there are a number of elements and best practice rules that have been outlined above which should assist.
Don’t risk embarking on litigation by yourself, for fear of the financial cost being too high. We offer flexible payment arrangements, and in many cases, well-run litigation can improve your chances of an indemnity costs order, so that all or most of your legal fees are covered.
Contact Gibbs Wright Lawyers for your litigation needs.
[1] Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at 441 [20]; [2005] VSCA 298 at [20]
[2] Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at 441 [20]; [2005] VSCA 298 at [23]
[3] McBride v ASK Funding Ltd [2013] QCA 130 at [65]
[4] See for example: Busley & Anor v State of Queensland [2016] QCA 158 at [77]; Oversea-Chinese Banking Corporation v Richfield Investments Pty Ltd [2004] VSC 351; Toal v Aquarius Platinum Ltd (No.2) [2004] FCA 678 [20]; Williams v Minister for Environment & Heritage [2004] FCAFC 58; Re: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers Western Australia & Anor Unreported FCA; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchant Ltd (1988) 81 ALR 397
[5] See for example: Young Shire Council v Cummings & Anor (No 2) [2005] NSWCA 69 [15]; Busley & Anor v State of Queensland [2016] QCA 158 at [77]; Hazeldene Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435 [25];
[6] Busley & Anor v State of Queensland [2016] QCA 158 at [77]; Hazeldene Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435 [30]; Timms v Clift [1998] 2 Qd R 100
[7] See for example: Hazeldene Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435 [25]; Busley & Anor v State of Queensland [2016] QCA 158 at [77]
[8] Hazeldene Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435 [25]
[9] Timms v Clift [1998] 2 Qd R 100
[10] See for example: Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322; Cutts v Head [1984] Ch 290; Leichhart Municipal Council v Green [2004] NSWCA 341 [14]; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322; PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24 [2] and [35]; Cachia v Hanes (1991) 23 NSWLR 304; Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 228
[11] See for example: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15
[12] See for example: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15 [64]; see also Busley & Anor v State of Queensland [2016] QCA 158
[13] See for example: Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 at 410; Busley & Anor v State of Queensland [2016] QCA 158 at [80]; Baresic v Slingshot Holdings Pty Ltd & Anor (No. 2) [2005] NSWCA 160 [21]; Steward v Atco Controls Pty Ltd (in Liquidation) [No 2] [2014] HCA 31 [7]; Estate of Virgona v De Lautour (No 2) [2007] NSWCA 323; Brymount Pty Ltd v Cummins (No 2) [2005] NSWCA 69
[14] See for example: Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55, 58
In Australia, the tort of passing off involves one party misrepresenting another party’s goods or services as their own. Learn the elements to establish a cause of action in passing-off.
A guide to the process of contesting the rules and regulations made by governments and agencies.
Both are distinct legal instruments, and their incorrect use may have adverse consequences for certain transactions.