This was a Costs Decision related to an Application that was withdrawn before being heard by the Court, but not before the Plaintiffs incurred the Costs to prepare for the Application. The Plaintiffs sought solicitor and client Costs for the late withdrawal of the Application. The Defendant did not agree that Costs were payable, denied misconduct, and argued in the alternative that if Costs were to be awarded, $1,075.00 should be awarded as “thrown away” Costs under Schedule C.

Ho J. noted that pursuant to Rule 10.29(1), a successful party is generally entitled to receive Costs. Rule 10.31 outlines different forms of Costs Awards. The factors relevant to a Costs Award are contained in Rule 10.33.

The Plaintiffs pointed to a number of factors that warranted solicitor and client Costs, including an improper Affidavit, inappropriate objections during cross-examination on the Affidavit, submitting a draft Consent Order to Justice Ho without informing the Plaintiffs, failing to file a Brief, and the late withdrawal of the Application. Justice Ho did not consider the Defendant’s conduct to be so reprehensible, scandalous or outrageous as to justify solicitor and client Costs. After considering the factors outlined in Rule 10.33, Her Ladyship used her discretion under Rule 10.31 to award a sum of $2,000.00 to compensate the Plaintiffs for thrown away Costs.