A notice of motion to vary a costs order filed within the 14-day time limit under UCPR 36.16(3A) is valid even if it cites the wrong procedural rule, provided the substantive variations sought are identified within time. A contractual indemnity clause not formally pleaded in the substantive proceedings may still be relied upon as a factor supporting the exercise of the costs discretion in favour of indemnity costs. Where the underlying facts were available to the offeree at the time of an offer of compromise and those facts did not change, the court will not readily 'order otherwise' to exclude indemnity costs merely because the successful legal theory was not clearly articulated until later, particularly where the legal consequences were within the pleaded claim.
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