CNOOC PETROLEUM NORTH AMERICA ULC v ITP SA

The decision dealt with the appropriate Costs Award for five separate Applications brought within the same case-managed Action. The parties to the Action had mixed success across the various Applications.

The Court noted the general Rules for determining costs; in particular that Rule 10.29 entitles a successful party to an application to costs, and that Rules 10.31 and 10.33 give the Court discretion to apportion costs proportionately and reasonably in the circumstances. Although the various costs Applications were addressed in a single decision, there was still a need for the Court to determine what was appropriate in light of the result of each individual Application.

Nixon A.C.J. first turned to a pair of Applications brought with respect to the refusal of Undertaking Responses. In the first, the Plaintiff was substantially successful, and in the second the Defendants had found success. The Court noted that each party’s success party in these two Applications was effectively the same, and as such it was appropriate to set off the costs against one another and award no costs to either party.

The Court also considered an Application brought by the Defendants seeking to compel a corrected Affidavit from the Plaintiff in light of certain changes to Undertaking Responses. The parties disagreed as to the degree of success achieved; with the Defendants arguing that it was successful in its Application and the Plaintiff taking the position that, at best, the Defendants had achieved mixed success. The Court ultimately held that while the Defendants were not completely successful in achieving their sought relief, a successful Application does not mean success on all issues. The Defendants were the substantially successful party, and as such was entitled to costs.

Associate Chief Justice Nixon then considered a further Application brought by the Defendants to replace the corporate representative of the Plaintiff. The Defendants argued that this Application was closely intertwined with their Application seeking a corrected Affidavit; and that entitlement to costs in one must result in a similar finding in the other. The Court disagreed and noted that while the Applications were closely related, they sought distinct relief. The Defendants were not successful in their Application to replace the corporate representative, and as such they were not entitled to costs purely by virtue of their prior success.

Finally, the Court considered the appropriate costs for a third Application regarding Undertaking Responses provided by the Plaintiff. Of the 28 Undertaking Responses complained of, ten of the Plaintiff’s answers were upheld. Once again, the parties differed in their view of the relative success achieved; with the Defendants arguing they were substantially successful and the Plaintiff asserting that the success was mixed. The Court ultimately determined that the Defendants were successful on their Application. While not all of their challenges to Undertaking Responses were agreed with by the Court, they still achieved substantial success relative to the Plaintiff, and as such were entitled to costs.