Citation:
Onkea Interactive Ltd. v. Smith,
2007 BCCA 62
Date: （略）
Docket: CA33736
Between:
Onkea Interactive Ltd.
Respondent
(Plaintiff)
And
David Smith, Owen Bell also known as Ryan Chan, and 647927 B.C. Ltd.
Appellants
(Defendants)
Before:
The Honourable Madam Justice Saunders
The Honourable Mr. Justice Smith
The Honourable Madam Justice Kirkpatrick
B.B. Olthuis
Counsel for the Appellant
D.L. Armstrong
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
20 October 2006
Place and Date of Judgment:
20 November 2006
Written submissions received:
22 December 2006,
8, 12, & 15January 2007,
Place and Date of Judgment:
Vancouver, British Columbia
1 February 2007
Written Reasons of the Court:
Reasons for Judgment of the Court:
[1] In reasons for judgment handed down on November 20, 2006, we allowed this appeal from an interlocutory injunction granted in the Supreme Court.
[2] The parties have been unable to agree on the form of order submitted by counsel for the appellants and, as a result, the registrar has referred the draft to us for settlement pursuant to Rule 49(1) of the Court of Appeal Rules.
[3] The dispute over the form of order concerns the proper order for costs. In our reasons, we allowed the appeal and set aside the injunction order “with costs to the appellants here and below”.
[4] The parties agree that the order for costs in this Court should be that the appellants recover the costs of the appeal forthwith after assessment. They disagree as to the form of order for costs of the application in the Supreme Court.
[5] The appellant submitted a form of order for settlement containing the following:
AND THIS COURT FURTHER ORDERS that the Appellants do recover the costs of the appeal and in the court below from the Respondents forthwith after assessment.
[6] The respondent objects to the appellants’ draft order for costs below payable forthwith. It contends that the order should award the appellants those costs as costs in the cause.
[7] We cannot agree. We did not order that costs of the application in the Supreme Court be costs in the cause. If we had, the respondent, rather than the appellants, would recover the costs of the application below if the respondent should ultimately succeed in the action. Clearly, that would be contrary to the intent of the statement in our reasons for judgment that the appellants should recover those costs. Thus, the order should state that the appellants recover the costs of the application below in any event of the cause. However, we did not order that the costs below be payable forthwith after assessment.
[8] Accordingly, the draft submitted to the registrar by the appellants does not record our order correctly in that respect.
[9] In their submissions on the settlement of the order, the appellants raise a new matter – they seek to revisit our order for costs in this Court. Although they did not ask for any special disposition as to costs in their factum, the appellants now seek an order for special costs of the appeal. They submit that the requisite reprehensible conduct on the part of the respondent consists of requiring our order to be settled when it should have consented to the form proposed by the appellants and in requiring the injunction order and another order to be settled by the chambers judge below when the appellants’ positions were “largely vindicated” by the chambers judge. As well, they assert that the respondent has “a demonstrable history of intransigence that warrants rebuke from the Court”. In particular, they contend that the respondent has required needless resort to the courts to settle disputes that should have been settled by consent.
[10] We do not consider that requiring orders to be settled by the registrar is necessarily reprehensible conduct such as to attract an award of special costs. Indeed, in this case, the respondent’s objections to the appellants’ draft have been upheld in part. Moreover, although intransigence of a party that results in needless resort to the courts might amount to conduct warranting an award of special costs depending on the circumstances, the appellants have placed no evidence before us in support of their allegations in this respect.
[11] Accordingly, we are all of the view that there no basis has been shown for an award of special costs to the respondent.
[12] Since the respondent was correct in part that the appellants’ draft did not record our order correctly, and since the respondent has successfully resisted the claim for special costs, the respondent will have its costs of the settlement to be set off against the costs awarded to the appellants on the appeal.
“The Honourable Madam Justice Saunders”
“The Honourable Mr. Justice Smith”
“The Honourable Madam Justice Kirkpatrick”
==========================================================================================
为尽量避免给当事人造成不良影响，经当事人本人申请110.com将对文章内容进行技术处理，点击查看详情。
==========================================================================================
