1.1: What these rules do
1.2: Purpose and intention of these rules
4.14: Authority of case management judge
4.22: Considerations for security for costs order
4.23: Contents of security for costs order
10.33: Court considerations in making costs award

Case Summary

The Court of Appeal considered two Appeals arising from Case Management Orders made during the contested administration of two estates. The Appellant, who was self-represented, raised several issues in both Appeals. Each issue was addressed by the Court in turn.

One issue raised by the Appellant was the Case Management Judge’s Decision to award solicitor and own client Costs to the Respondents. The Court of Appeal noted that Costs are discretionary and subject to deference, but also explained that an appellate Court may change a Costs award where there was an unreasonable exercise of discretion, palpable error of fact, or error of law. The Court then explained that solicitor and client Costs are usually only awarded when a party has engaged in outrageous or reprehensible conduct during the litigation, and are only awarded in rare circumstances. It held that while the Appellant had used “extravagant language” from time to time and imposed substantial Costs on the estates and other parties, solicitor and own client Costs were not proper in the circumstances. Rather, enhanced Costs were warranted.

The Court of Appeal further explained that pursuant to Rules 1.2(4) and 10.33(1)(c) and (d), a Costs award should be proportional to the size of the estate and interests involved. The Court should consider issues like whether the steps taken in the Action were reasonable and whether second counsel was required. Additionally, pursuant to Rule 10.33(2)(c), where parties to an Action have similar interests but have separate counsel, the Court should consider whether multiple sets of Costs should be awarded, in particular where Costs are to be paid out of the residue of an estate. The Court ultimately ordered that the Appellant pay $150,000 plus reasonable disbursements and GST to the Respondents.

Another issue raised by the Appellant was whether he should have been denied leave to bring a further Application to remove and replace the executrix until he complied with conditions, including the payment of Costs accrued during the proceedings (which amounted to approximately $34,000). The Court of Appeal noted that pursuant to Rule 4.14(1), Case Management Judges have wide discretion to specify how Applications may be brought, including by imposing conditions precedent to any procedural step. However, it also noted that the Order had the same effect as an Order for Security for Costs in an unreasonable amount. The Court explained that the factors to be considered in awarding security for Costs are set out at Rule 4.22. The Rule reflects the principle that Orders for Security for Costs should reflect the nature of the issues and the parties’ means. The Court also explained that Security for Costs is forward-looking. As such, making payment of Costs a condition for proceeding with further Applications “amount[ed] to changing the rules after the fact”. The Court determined that the payment condition could not be supported, as it amounted to an unreasonable Security for Costs Order. Instead, it ordered that the Appellant post $10,000 as Security for Costs before he could argue the new Application, or it would be deemed dismissed pursuant to Rule 4.23(1).

Another issue raised by the Appellant was his treatment as a self-represented litigant, because he was held “to the same standards as counsel”. The Court noted that, in accordance with Rule 1.1(2), the Rules apply equally to all parties, whether they are represented by counsel or not. The Court found that the Appellant’s new evidence about the treatment of self-represented litigants was irrelevant and inadmissible, and that he had not demonstrated any procedural unfairness.

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