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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.