The Applicant sought a Cost award in the amount of 40-50% of its incurred legal expenses. 

The Court noted that a successful party is prima facie entitled to a Cost award and this should only be departed from in rare and exceptional circumstances. The Court determined that because the Applicant was the successful party in the broader Action, it was entitled to Costs pursuant to Rule 10.29(1); the only outstanding issue was to determine the appropriate quantum.

The Court considered the factors outlined in Rule 10.33(1) and 10.33(2), specifically noting that the Applicant had:

• unnecessarily contributed to lengthening and delay the matter because it had not taken steps to advance its Originating Application for almost three years,
• been unsuccessful in interlocutory applications despite the Applicant’s assertion the interlocutory applications had no impact on the outcome of the Action, and
• filed offending materials despite being given instructions by the Court of Appeal that, if followed, would have avoided them being

The Court determined that after considering the factors in Rule 10.33, it was required to refer to the options for making Cost awards provided for in Rule 10.31. The Court found that because most of the Applicant’s Costs were incurred in association with responding to avoidable Interlocutory Applications which could have been avoided if Court directions were followed, that party and party Costs were appropriate in accordance with Column 4 of Schedule C.