Abstract

Article

Estoppel by Convention

In New Zealand, for an estoppel by convention the following must be established by the party invoking it: (1) The parties have proceeded on the basis of an underlying assumption of fact, law, or both, of sufficient certainty. (2) Each has, to the knowledge of the other, expressly or by implication accepted it as true for the purposes of the transaction. (3) It was intended to govern their legal position inter se. (4) The proponent was entitled to act and has, as the other party knew or intended, acted in reliance upon the accepted truth and binding force of the assumption. (5) The proponent would suffer detriment if the other party were allowed to resile or depart from it. (6) It would be unconscionable for the other party to do so. National Westminster Finance NZ Ltd v National Bank of NZ Ltd[1996] 1 NZLR 548.

Indemnity Costs

An offeree’s rejection of a Calderbank offer does not necessarily lead to a presumption that he should pay the offeror’s costs on an indemnity basis on obtaining a less favourable result. The issue is whether in all the circumstances it justifies departure from the usual result that they follow the event on a party and party basis. Reasonableness strikes the balance between encouraging settlement and not discouraging potential litigants from bringing their disputes to the courts. J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23); Hadgelias Holdings Pty Ltd v Seirlis [2014] QCA 325; Hazeldene’s Chicken Farm Pty Ltd v WorkCover Authority (Vic) (No 2) [2005] VSCA 298; (2005) 13 VR 435. That the issue in the trial was far from straightforward and was but one separate aspect of a considerably broader issue being considered by another court while the offer sought to embrace a global outcome on a matter on which the court is not in a position to reach a view are factors which would militate against such an order. The test is the same as that adopted in respect of the same issue under the Rules of Court. Insurance Australia Ltd trading as CGU Insurance v MOS Beverages Pty Ltd (No 2) [2021] FCAFC 192