The dispute involved fees owed between the parties arising from an oil and gas contract. Both parties brought Applications regarding the fees, but the primary Application was withdrawn on a without Costs basis. Only the cross-Application remained. Justice Harris dismissed the cross-Application, substantially reducing the amount to be paid by the Respondent. Despite this, the Applicant argued for Costs of the cross-Application on a full indemnity basis.

Justice Harris noted the general rule that only a successful party is entitled to Costs. Harris J. also noted that the Court has considerable discretion in deciding Costs Awards, so long as that discretion is exercised reasonably. Reference was made to the factors outlined in Rule 10.33(2) which the Court may consider when deciding to depart from the general rule that a successful party is entitled to Costs, including unnecessary litigation and misconduct. However, the Court did not agree that the Respondent’s actions rose to a level that warranted a departure from the general rule, and no Costs were awarded to the Applicant.