Ofria v Cameron (No 2)

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.