CNOOC PETROLEUM NORTH AMERICA ULC v ITP SA

The Wood Group sought costs against CNOOC. In doing so, it claimed costs arising from a cross-examination conducted in a separate but related action (“Action 1”).

CNOOC argued that it was res judicata to allow recovery of costs in the present Action (“Action 2”) for questioning on an Affidavit filed in another action. The Wood Group argued that CNOOC relied, in Action 2, on an Affidavit filed in Action 1, and that the cross-examination was incidental to Action 2. On that basis, the Wood Group submitted that costs should be recoverable.

Associate Chief Justice Nixon cited the Courts’ general discretion under Rules 10.31 and 10.29(1). The Court held that there were no mandatory constraints or rules governing the exercise of its discretion under Rules 10.31 and 10.33, other than the requirement to “act judicially on the facts of the case”.

While Nixon A.C.J. did not agree with CNOOC’s argument that cross-examination costs were res judicata, the Court found that they should not be awarded. In making this determination, the Court considered that while costs of the cross-examination were sought in Action 1, they were not granted. The Court further considered that costs in Action 1 were proper under Column 1 of Schedule C, and that costs in Action 2 were proper under Column 5 with a multiplier of four.