The Respondents sought an indemnity for Costs on the basis that the Applicants were unsuccessful in their claim alleging that the Respondents acted without good faith and for an improper purpose in making zoning decisions. In the alternative, the Respondents sought increased Costs on the basis that the Judicial Review Application was complex.

The Court noted that the plain reading of the Rules would require Costs to be calculated under Column 1, because the Originating Notice did not seek monetary relief. However, the Court also held that the awarding of Costs is discretionary. In relation to the unproven “bad faith” allegations, the Court held that usually unproven allegations of fraud attract Costs on an indemnity basis, or at least attract an obligation to pay heavy Costs. However, this principle does not apply to unproven allegations of “bad faith”. Taking all of the submissions into consideration, the Court awarded the Respondents increased Costs on the basis that there was a lot at stake for both parties, and it was a complex matter.