3.65: Permission of Court to amendment before or after close of pleadings
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
14.88: Cost awards

Case Summary

The Court heard an Application seeking direction on the Costs consequences and form of Judgment granted in a prior Decision. The parties had previously brought competing Applications for Summary Judgment, and the Court found that the Respondent trustee in bankruptcy was substantially, although not completely successful.

The Court noted that the prior Court of Appeal Decision granted the Appellant leave to circulate an amended Statement of Claim pursuant to Rule 3.65, and that any disputes as to the nature and form of the amended pleadings were to be referred back to the Trial Court, and that the form of Judgment should reflect that.

With respect to Costs, the Court stated that although the payment of Costs for interlocutory Applications can be deferred until the litigation is finalized, the presumption in Rule 10.29 is that Costs are paid following that particular Application. Additionally, the Court found that Rule 14.88 could not be relied upon, as Trial Costs had not been set, so with this being an Appeal, that Rule did not apply.

Thus, the Court held that Costs were payable forthwith. Due to the complexity of the legal issues raised in the Appeals, Costs were awarded at 5 times the Column 5 Schedule C amount for the initial Appeal, while the Respondent received 3 times item 19(1) of Column 5 of Schedule C for the filing of its Factum in the cross-Appeal. In addition, the Court ruled that the Respondents were entitled to Costs as set out in Column 3 of Schedule C as a result of the Applicant’s failed motion for Security of Costs. The Court noted that this Application could have been avoided if the Trustee in Bankruptcy had acknowledged that it was primarily liable for the Costs of litigation commenced on behalf of the bankrupt estate. Finally, the Court noted that the aforementioned Costs Awards would offset each other, pursuant to Rule 10.31(4).

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