Photios v Photios (No 2)

In *Photios v Photios (No 2)*, the New South Wales Court of Appeal considered an application for costs on an indemnity basis. The dispute concerned an application for leave to amend a statement of cross-claim, and the subsequent appeal from the primary judge's decision on that application. The Court of Appeal comprised Bell P, Gleeson and Leeming JJA.

The central legal issue before the Court of Appeal was whether the respondent should be entitled to an indemnity from the estate of Henry Basil Photios for certain costs incurred in the proceedings. This involved considering the principles governing the award of costs on an indemnity basis, particularly in the context of an offer made during the litigation.

The Court reasoned that an indemnity costs order was warranted in this instance. It applied the principles established in cases concerning offers to settle and the conduct of parties during litigation. The Court determined that the respondent should be indemnified for her costs of the application for leave to amend before the primary judge and her costs in the Court of Appeal.

The Court of Appeal varied the orders made on 27 June 2019 by adding a condition to the grant of leave to amend the amended statement of cross-claim, requiring the appellant to pay the mediator's costs of any further mediation. The Court further ordered that the respondent pay the appellant's costs of the application for leave to amend before the primary judge and the costs of the application for leave to appeal up until 12 March 2019 on a party-party basis. Crucially, the respondent was entitled to an indemnity from the Estate of Henry Basil Photios for these costs and her own costs in relation to the application for leave to amend and the appeal.