CANTAK CORPORATION v HADERER

The Court ruled on costs following an Application brought by Cantak, who successfully obtained an Attachment Order and Mareva Injunction against the individual Respondents. Cantak sought solicitor-client costs of $89,924.45 or, alternatively, enhanced costs of $64,545.95 pursuant to Column 5 of Schedule C of the Rules.

The Respondents argued that a Costs Award of $32,000.00 was appropriate. Their position was that Cantak’s claimed costs were excessive, costs should not be elevated based on interlocutory success on an incomplete evidentiary record, and a significant Cost Award would impair their ability to defend the underlying Action.

Justice Marion relied on Rule 10.29, highlighting that Cantak was successful in its Application and was therefore presumptively entitled to costs. The Court found that the Application fell within Column 5 of Schedule C, based on the value of the assets at issue, despite evidence that the Respondents had spent a significant portion of those assets. The Court further found that the Application was of critical importance to both parties and was reasonably complex, involving extensive records, Affidavit evidence, and transcripts. It was further noted that the Respondents failed to respond to Cantak’s proposed Consent Order, the terms of which ended up being quite similar to the relief granted.

The Court rejected the Respondents’ submission that Cantak’s conduct unnecessarily increased costs, finding that the Application was justified and warranted. The Court similarly rejected the argument that Cantak failed to provide relevant and material records, noting that the Respondents did not take appropriate steps at the time to seek further production.

Cantak took the position that the Respondent’s conduct, including pre-litigation conduct, justified solicitor-client costs. Justice Marion held that the high threshold for solicitor-client costs was not met. However, Justice Marion determined that the Respondents conduct supported an award of enhanced costs, resulting in a Cost Award of $58,219, together with disbursements.

The Court took time to address Cantak’s attempt to rely on settlement communications exchanged after the underlying decision but before the costs determination. Justice Marion confirmed that such communications were privileged and should not have been disclosed without the consent of both parties.