Ofria v Cameron (No 2)

Case [2008] NSWCA 242



New South Wales


Court of Appeal


CITATION: Roland Ofria v Robert William Cameron [No 2] [2008] NSWCA 242
 
JUDGMENT DATE: 

7 October 2008
JUDGMENT OF: Beazley JA; Ipp JA; Handley AJA
DECISION: (1) Order 2 made by this Court on 1 July 2008 is varied by adding the words "on an indemnity basis but without affecting any other order for costs in the proceedings."
(2) The costs of this application to be the appellant's costs in the appeal.
CATCHWORDS: COSTS - Calderbank offer by defendant before trial - Costs of litigation disproportionate to claim - Defendant successful on appeal - Order for indemnity costs of trial
LEGISLATION CITED: Civil Procedure Act 2005
Legal Profession Act 2004
Suitors' Fund Act 1951
CATEGORY: Consequential orders
CASES CITED: Jones v Bradley (No 2) [2003] NSWCA 258
PARTIES: Roland Ofria (Appellant)
Robert William Cameron (Respondent)
FILE NUMBER(S): CA 40804/07
SOLICITORS: Niall Connolly Lawyers (Appellant)
McLaughlin & Riordan Solicitors (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 5504/05
LOWER COURT JUDICIAL OFFICER: Hungerford ADCJ
LOWER COURT DATE OF DECISION: 22 October 2007





                          CA 40804/07

                          BEAZLEY JA
                          IPP JA
                          HANDLEY AJA

                          7 October 2008
ROLAND OFRIA v ROBERT WILLIAM CAMERON [No. 2]

COSTS – Calderbank offer by defendant before trial – Costs of litigation disproportionate to claim – Defendant successful on appeal – Order for indemnity costs of trial.

HEADNOTE

The plaintiff sued a client for $49,260.50 for unpaid fees and recovered judgment at trial for $39,123.87. The defendant had made a Calderbank offer before action of $30,000.00. On appeal judgment was entered for the defendant who applied for an order for indemnity costs of the trial. HELD: (1) The size of the claim and the risk that the costs of litigation would be disproportionate were relevant considerations to be taken into account in the exercise of the Court’s discretion; (2) The Calderbank offer can be made before action; (3) The Court’s obligations under ss 56 and 60 the Civil Procedure Act to facilitate the just quick and cheap resolution of the case at a proportionate cost were also relevant considerations; (4) The plaintiff should be ordered to pay the defendant’s costs of the trial on an indemnity basis.

ORDERS


      (1) Order 2 made by this Court on 1 July 2008 is varied by adding the words “on an indemnity basis but without affecting any other order for costs in the proceedings.”

      (2) The costs of this application to be the appellant’s costs in the appeal.


                          CA 40804/07

                          BEAZLEY JA
                          IPP JA
                          HANDLEY AJA

                          7 October 2008
ROLAND OFRIA v ROBERT WILLIAM CAMERON [No. 2]
Judgment

1 THE COURT: On 1 July this year this Court, in an extempore judgment, allowed this appeal with costs, set aside the judgment of the District Court in favour of the respondent and entered judgment for the appellant defendant with costs. The respondent was granted a certificate under the Suitors Fund Act.

2 The appellant applied on 8 July for an order that the respondent pay…

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AGLC
Ofria v Cameron (No 2) [2008] NSWCA 242
Case
[2008] NSWCA 242
Decision Date

CaseChat Overview and Summary

The parties to this matter were Ofria and Cameron. The dispute concerned an application to vary a costs order made by the Court of Appeal of New South Wales. The primary issue before the court was whether to amend an existing costs order to reflect that the costs awarded to the successful appellant should be on an indemnity basis.

The court was required to determine whether to vary its previous order to specify that the costs awarded to the appellant on appeal should be on an indemnity basis, while ensuring this did not affect any other costs orders made in the proceedings. This involved considering the circumstances under which indemnity costs might be awarded, particularly in light of a *Calderbank* offer made by the defendant prior to trial and the fact that the defendant was ultimately successful on appeal.

The court reasoned that the appellant, having been successful on appeal, should be entitled to indemnity costs for the trial. This decision was influenced by the fact that the costs of the litigation were disproportionate to the claim, and the defendant had made a *Calderbank* offer before the trial. The court applied the principle that where a party makes a reasonable offer to settle which is not accepted, and the other party subsequently fails to achieve a better outcome, the court may award indemnity costs to the offering party.

The court ordered that the previous order made on 1 July 2008 be varied by adding the words "on an indemnity basis but without affecting any other order for costs in the proceedings." The costs of the application itself were ordered to be the appellant's costs in the appeal.

Orders

Orders of the court

(1) Order 2 made by this Court on 1 July 2008 is varied by adding the words "on an indemnity basis but without affecting any other order for costs in the proceedings." (2) The costs of this application to be the appellant's costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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