10.39: Reference to Court
14.16: Filing the Appeal Record – standard appeals
14.88: Cost awards
14.90: Sanctions

Case Summary

In accordance with Rules 10.39 and 14.88(2), an Assessment Officer sought guidance from the Court regarding the appropriate scale of Costs for an Award under Rule 14.90(2) in the context of an Appeal being struck due to non-compliance with the Rules.

The case involved matrimonial litigation, specifically concerning child support for two adult children. The Appellant's Appeal was struck for failing to file the necessary Appeal Record, as required by Rule 14.16(3), entitling the Respondent to a Costs Award under Rule 14.90(2).

The Court noted that Rule 14.88(3) generally prescribes that Costs for an Appeal are assessed based on the scale awarded in the original Order. However, this approach was complicated by the fact that the original Order awarded lump sum Costs, and the Respondent had not completed many of the steps outlined in Schedule C of the Rules.

The Court noted that in situations where the standard presumptions for Costs Assessments are impractical, the Respondent should seek the Court’s direction on Costs. This involves first attempting to reach an agreement with the Appellant and, failing that, consulting the Case Management Officer for the appropriate procedure.

In this specific Appeal, the Respondent claimed solicitor and client Costs, citing the Appellant's failure to accept reasonable offers and allegations of litigation misconduct. However, the Court observed that only offers to settle the Appeal, not prior settlements, are relevant to the Costs of the Appeal. Similarly, alleged misconduct by the Appellant was found to be relevant to the Trial proceedings but not to the Appeal process.

The Court concluded that there was no basis to deviate from the standard Cost assessment method. Since the Respondent did not complete the necessary steps in responding to the Appeal, the Court awarded half the Costs of "all other preparation" under item 19(2) of Schedule C, amounting to $337.50, plus reasonable disbursements and GST. No additional Costs were awarded.

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