10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiff was successful in obtaining Judgment against two of the Defendants for oppression, based on the value of the Plaintiff’s shares. The parties returned to the Court for a determination as to whether the Plaintiff was entitled to Costs under Column 1 or Column 5 of Schedule C. The Defendants argued that the underlying Application was non-monetary and the Judgment was declaratory in nature, so Column 1 was appropriate. The Plaintiff argued that Column 5 was appropriate as the amount awarded was in fact a monetary Judgment.

Justice Read noted that the Court has wide discretion to award Costs. Her Ladyship referred to the factors set out in Rule 10.33 that must be considered in exercising discretion to award Costs. The factors include: the result of the Action and the degree of success of each party; the amount claimed and the amount recovered; the importance of the issues; the complexity of the Action; the apportionment of liability; the conduct of a party that tended to shorten the Action; and any other matter related to the question of reasonable and proper Costs that the Court considers appropriate. Read J. also considered the principles of recovery of Costs in Schedule C and held that, in this case, the underlying issues in the Action were complex and needed to be tried. Further, the Defendants’ conduct during Trial made it needlessly longer. These factors weighed in favour of increased Costs as against the Defendants. Costs under Column 5 were awarded.

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