This decision dealt with Costs from two appeals. The Appellants, Azmin and Shahin Habib, filed two appeals from interlocutory Orders concerning four jointly owned properties subject to joint venture agreements. The first Order directed the sale of properties in the name of their son and Respondent, Alykhan Habib, with proceeds payable into Court. The second Order required 50% of the net sale proceeds from a property registered to Shahin Habib and her daughter to be paid into Court.

Both appeals were dismissed. The first appeal was moot, as the properties in the name of Alykhan Habib had been sold, the encumbrances discharged, and the monies paid into Court. The second appeal was upheld after deference was granted to the Chamber’s Judge. 

The matter returned before the Court for a determination on Costs.

On the first appeal, Alykhan Habib sought double costs pursuant to Rule 4.29, arguing that he bettered two Calderbank offers. On the second appeal, he sought enhanced costs for litigation misconduct pursuant to Rule 10.33. He calculated total costs at $36,120, including GST.

The Appellants argued that costs should be $4,000, reflecting the amount awarded by the Chambers Judge in the second Order under appeal.

The Court noted that Rule 14.88 governs costs on appeal but acknowledged that its application is difficult where the Chambers Judge awarded a lump sum. The Court rejected both parties’ proposed figures, finding the Appellants’ suggestion of $4,000 too low and Alykhan Habib’s claim unjustified in part. Given the interrelated appeals, shared appeal record, and overlapping facta, the Court found that only a single attendance fee and one record preparation cost were appropriate. The Court further held that the claim for costs under Schedule C, Item 7(1), relating to the original King’s Bench Application, must be determined by that Court itself.

Considering the factors in Rule 10.33, the Calderbank offers, the lump sum award below, and the efficiencies gained by combining attendances, the Court awarded $15,000 all-inclusive for both appeals.