# Research Note — Recent Costs Authority (30 April 2026) **Matter:** McKenzie & Anor ats JPS Medical Recruitment Pty Ltd **Court:** District Court of Queensland No 598/26 **Author:** BossLawyerAI **Trigger:** Daily learning digest 2026-04-30 (costs and procedure). Cross-checked the Calderbank correspondence currently being settled against current authority. --- ## Bottom line Our **Calderbank Letter v4** is structurally sound and consistent with current authority. The recent QCA decision in *Metro North Hospital and Health Service v Stewart* [2024] QCA 226 does **not** invalidate it (it's a Calderbank, not a UCPR Part 5 offer). However, three observations and one strategic recommendation arise. ## Observations ### 1. Calderbank validity — letter is compliant The v4 letter contains all five Calderbank essentials confirmed in *Built Qld v Pro-Invest (No 3)* [2022] QSC 62 and the subsequent commentary: - ✅ Marked "Without Prejudice Save as to Costs" - ✅ States it is made pursuant to *Calderbank v Calderbank* [1975] 3 All ER 333 - ✅ Open for 28 days (well above the 14-day minimum and longer than the construction-case "1 day" patterns that have been discounted) - ✅ Foreshadows application for indemnity costs on unreasonable rejection - ✅ Sets out the basis of the genuine compromise — extensive analysis of the plaintiff's weaknesses (restraint width, absence of confidentiality regime, Faccenda Chicken know-how, fiduciary duty defects, repudiation, damages unquantified) The "genuine compromise" section explicitly acknowledges the Defendants' own risks (data export, quantum of commission, repudiation factual disputes) before identifying the offer as a compromise of those competing risks. That is exactly the pattern *Built Qld* approves. ### 2. Why we should also consider serving a UCPR Part 5 offer in parallel A Calderbank offer leaves the costs question to a discretionary "unreasonableness" assessment. A compliant UCPR offer engages **r 361** automatically (subject to the offeree showing some other order is appropriate). Under the **post-23 June 2023** rules, a defendant who serves a compliant r 353 offer, and where the plaintiff fails to obtain a more favourable order, is entitled to: - the plaintiff's standard costs to and including the day of service of the offer; and - the plaintiff's **indemnity** costs after the offer. If we structure a parallel UCPR offer to mirror the Calderbank quantum, we have two costs-protection mechanisms running. The defendant in *Built Qld* (Williams J) used exactly that approach — formal UCPR offer + Calderbank — and recovered indemnity costs. ### 3. *Metro North v Stewart* drafting considerations for any UCPR offer we serve If we draft a UCPR Part 5 offer, we must avoid the *Metro North* trap: - **Do not** leave any component "to be agreed", "to be assessed" or "subject to further agreement" in the body of the offer. - The current Calderbank offers $45,000 to the **First Defendant** in full and final settlement of the **Counterclaim**, with **discontinuance** of the claim and counterclaim, **no order as to costs**, and a deed of release. - For a UCPR Part 5 version to be valid, every component must be on the face of the offer. The "deed of settlement and release containing mutual releases, a confidentiality clause, and no admissions" is acceptable provided we constrain it (per *Built Qld*) to "reflecting" the offer terms. - We should specify that any deed will be on terms "mutually acceptable, reflecting only the terms of this offer". ### 4. Quantum of compromise — the QCA "extent of compromise" line Recent QCA authority (Applegarth J, Morrison JA agreeing) confirms r 360 does **not** require substantial compromise. Even a modest discount from the agreed/expected quantum will engage indemnity costs if the offeror betters the offer at trial. Application here: the Counterclaim claims approximately $88,000 (unpaid commission ~$68,000 + unauthorised deduction ~$20,000) plus FW Act penalties up to $93,900 per contravention. The current Calderbank offer of $45,000 represents a ~50% discount on the principal Counterclaim value (excluding penalties). On any view this is a substantial compromise — if anything, it may be too generous to engage maximum costs leverage. For the UCPR Part 5 version, consider a **higher** offer (e.g. $55,000–$60,000) which: - still preserves a "no order as to costs" outcome more favourable to JPS than the inevitable cost burden of running the case; - but is closer to the realistic Counterclaim recovery, making it harder for the plaintiff to argue the offer was not bettered. ## Strategic recommendation **Serve a parallel UCPR Part 5 offer alongside the Calderbank**, on the same day or close to it. Structure as follows: 1. **Calderbank Letter v4** (as drafted) — fuller exposition of the plaintiff's difficulties, basis for indemnity costs application, $45,000 + discontinuance + no order as to costs, deed of release. 2. **UCPR Offer to Settle (separate document)** — formal r 353 offer, every component quantified: - Within 28 days of acceptance, the Plaintiff pays the First Defendant $X (consider $50,000–$55,000) inclusive of interest under s 58 *Civil Proceedings Act 2011* (Qld) calculated to date of acceptance, in full and final satisfaction of the Counterclaim. - The proceeding (claim and counterclaim) be discontinued. - Each party bear its own costs. - Optional: deed of settlement and release on terms "mutually acceptable, reflecting only the terms of this Offer to Settle". - Open for 14 days (or longer; r 355(1) requires at least 14 days from service). - Statement that the offer is made under Chapter 9, Part 5 of the UCPR (r 353(3)). 3. **r 361A back-up** — in correspondence, foreshadow that if the claim is dismissed (e.g. on a summary judgment / strike-out application we may bring on the restraint-of-trade pleading) the offer will trigger r 361A and indemnity costs from the date of service. ## File actions - [ ] Discuss with Mark before serving the second offer - [ ] If approved, draft UCPR Part 5 offer in parallel with Calderbank v5 (or v4 as final) - [ ] Update billing narrative to record this research and any strategic memo arising ## Authorities cited / consulted - *Metro North Hospital and Health Service v Stewart* [2024] QCA 226 — UCPR offers must settle whole of claim - *Surman v Gateway Lawyers (A Firm) (No 2)* [2025] QSC 346 — r 361A on dismissal - *Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 3)* [2022] QSC 62 — UCPR + Calderbank in parallel - *Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd* [2021] QCA 8 — single net judgment between claim and counterclaim - *Calderbank v Calderbank* [1975] 3 All ER 333 — origin - UCPR rr 353, 355, 360, 361, 361A (as amended by SL 2023 No 61) - *Civil Proceedings Act 2011* (Qld) s 58 (interest) Cross-reference: `library/digests/2026-04-30.md`; `reference/qld-costs-service.md` (updated section "QLD UCPR Offers to Settle — Post-23 June 2023 Regime").