14.88: Cost awards
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

In a Decision granting Security for Costs of an Appeal against a bankrupt’s professional trustee, the Chambers Judge was critical of the non-party individual acting on behalf of the trustee (“PD”). PD then pursued several Applications to intervene i) in the Application for permission to appeal the Security for Costs Order; ii) in the Appeal of the Security for Costs Order; and iii) in the Appeal proper. Upon dismissing all of PD’s Applications, the Court of Appeal considered Costs payable.

PD argued that the scale of Costs applicable for non-monetary relief is Column 1, citing Rule 1(4) of Schedule C. The Court observed that Rule 1(4) of Schedule C provides that the scale of Costs applicable for non-monetary relief is the higher of Column 1 and “the scale that would have applied if the other remedy had not been given or sought.” The Court additionally referred to Rule 14.88(3), which specifically presumes that the scale of Costs applicable to an Appeal is the scale which applied to the Order or Judgment appealed from. As the Appeal in issue respected Security for Costs in the aggregate amount of $240,000, the Court held that Column 3 was the appropriate scale for Costs.

The issue of enhanced Costs was also before the Court. It was observed that PD had doggedly pursued relief, which was improper and contrary to law, as PD was in essence attempting to censor the obiter comments of a Chambers Judge with which PD disagreed. The Court awarded enhanced Costs to each separately represented party on the basis of five times Column 3.

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