This Costs Endorsement involved an application under Rule 9.12, in which the Court was asked to revisit its earlier “mixed success” costs decision arising from a streamlined family Trial.

The Defendant father submitted that the Court failed to account for his Formal Offer to Settle pursuant to Rule 4.24. The Defendant argued the outcome at Trial did not exceed the value of his Offer to Settle, thereby entitling him to double costs under Rule 4.29. He asserted that this oversight constituted a “slip” or “mistake” within the meaning of Rule 9.12, which empowers Courts to amend final Orders to correct clerical, technical, or drafting errors that do not reflect the Court’s true intention.

Rule 9.12 typically requires a formal application; however, the Court may, on its own, correct a plain error where the Judgment does not reflect its intended result. The Rule is limited to technical or clerical corrections and does not allow a Court to revisit or re-try an issue. Substantive errors are a matter for the Court of Appeal.

Justice Lema found Rule 9.12 inapplicable. The earlier Costs Endorsement had already acknowledged the Defendant’s reliance on his Settlement Offer, his claim for double Costs, and implicitly concluded that he had not bettered the Offer at Trial. Lema J. confirmed that Rule 9.12 is confined to clerical or drafting corrections, not to re-argument of substantive issues.

Turning to Rule 4.29 and whether double Costs should be awarded, Justice Lema confirmed that the onus rests on the party seeking Costs to demonstrate that the Trial result was “clearly” more favourable than the Offer.

The purpose of Rule 4.29 is to encourage parties to compromise. The primary factors for whether the rule has been triggered and (if so) how it ought to be applied are: (a) the timing of the offer; (b) the content of the offer; (c) the non-de-minimus character of the offer; and (d) the presence or absence of “special circumstances”.

Justice Lema confirmed that in complex, multi-issue family matters, success must be assessed globally, rather than by parsing individual issues. In the streamlined Trial, Lema J. decided nine discrete issues touching on various aspects of spousal support, income imputation, child support, the value of the matrimonial home, and other outstanding property issues. While the Defendant fared better on the single issue of child support arrears at Trial, Lema J. was not satisfied that he had plainly achieved a better global result relative to his Settlement Offer.

Even if Rule 4.29 had applied, Justice Lema found “special circumstances” within Rule 4.29(4)(e) that justified withholding double Costs. The Defendant’s lack of disclosure regarding his finances and his failure to file his 2023 tax return undermined the integrity of the proceedings and warranted denial of the punitive doubling remedy.

Accordingly, the Application to vary the earlier Costs Decision was dismissed. Each party continued to bear their own Costs.