Tambree v Travel Compensation Fund & [No 2]

The Supreme Court of New South Wales considered an application concerning costs in the matter of *Tambree v Travel Compensation Fund & [No 2]*. The dispute involved an appeal regarding an earlier costs order made against the fifth defendant in favour of the Travel Compensation Fund (TCF).

The primary legal issue before the Court was whether the earlier costs order, which directed the fifth defendant to pay TCF's costs of the proceedings, should be varied. This question arose in the context of a *Calderbank* offer made by TCF, which had implications for the assessment of costs.

The Court reasoned that the *Calderbank* offer, made on 18 April 2001, was a significant factor in determining the appropriate costs order. By setting aside the original order and substituting it with one that limited the fifth defendant's liability to TCF's costs incurred up to and including that date, the Court acknowledged the impact of the offer on the overall litigation. The Court applied principles relating to the assessment of costs in light of settlement offers that are more advantageous than the ultimate outcome of the proceedings.

Consequently, the Court ordered that so much of the previous order as directed the fifth defendant to pay TCF's costs of the proceedings be set aside. In its place, the fifth defendant was ordered to pay TCF's costs properly incurred up to and including 18 April 2001. The costs of the application itself were made costs in the appeal.