ATB FINANCIAL v REAL INDUSTRIES 333 CORP

The Appellants appealed a Summary Judgment decision. The Appellants were wholly unsuccessful in the Appeal. Following the dismissal of the Appeal, the Parties advanced conflicting positions as to how the Court should deal with the costs of the Appeal.

Prior to the hearing of the Appeal, the Appellants had provided security for costs of the Appeal. The Appellants were of the position that the security should be returned to them in its entirety and that no costs ought to be paid to the Respondent due to the fact that the decision resulting from the Appeal was silent on the issue of costs. The Respondent was of the position that, as the successful party, they were entitled to costs of the Appeal.

The Court considered Rule 14.88(1), which provides that unless otherwise ordered, the successful party in any appeal is entitled to a cost award against the unsuccessful party. While the decision resulting from the Appeal did not expressly order costs, it did not expressly dispense with the need for costs either. The Court held that this silence merely evidenced the intention that Rule 14.88 apply to the matter. As such, the Court held that the Respondent was entitled to Costs of the Appeal.