In this matter, the parties were unable to agree on Costs and, therefore, required a Costs decision from the Court. The Defendants sought Costs of the Appeal and argued that they should be entitled to enhanced Costs. They based their Costs position on Column 4 of Schedule C, Item 8(1) and relied on the language that states that for complex Chambers Applications, the Court may direct that Costs relating to an Appearance to argue before an Appeal Court apply, instead of the Costs in this Item. Thus, arguing that Items 19 and 20 of Schedule C should be applied.

In the Court’s Decision, Justice Marion considered the general Costs principles. The Defendants did not provide any case authority to support that the Appeal should be treated as complex justifying Court of Appeal-type Costs as contemplated by the commentary in Item 8(1) of Schedule C. Justice Marion then turned to the common law and concluded that, generally speaking, Courts will only apply the Court of Appeal-level Costs from Items 19 and 20 of Schedule C where the Application is unusually lengthy or the underlying record or legal issues are unusually complex or costly. Therefore, in the matter at hand, the Court was not satisfied that the Appeal was anything other than a typical Special Application with its usual trappings and concluded that it was not appropriate to depart from Schedule C or to award Court of Appeal-level Costs as claimed by the successful Defendants. The Court did note that the Defendants’ failure to provide their actual costs prevented the Court from assessing whether the enhanced Costs the Defendants claimed would provide them reasonable partial indemnification, full indemnification, or over-indemnification. In these circumstances, the Court drew an adverse inference against the Defendants in respect of what their actual solicitor-client Costs were in respect of the Appeal and found that the claimed enhanced Costs would likely provide unreasonable indemnification in the circumstances.

The Defendants were awarded Costs, plus GST, based on Item 8(1) of Schedule C. The Plaintiffs had been completely successful in the Costs Application and were entitled Costs of a contested Application. Although no Court attendance was necessary, the Court’s direction required written submissions and, further, the Court found that the full amount of item 7(1) of Schedule C was appropriate to factor in the Defendants’ failure to follow Justice Marion’s clear direction as noted above.