Following the applicant's abandonment of an application for leave to commence a derivative action on behalf of a corporation, the respondent sought costs pursuant to Rule 38.08(3) of the Rules of Civil Procedure.
The court considered whether to depart from the presumptive costs entitlement and found that the applicant had not established on a balance of probabilities that the application disclosed a bona fide cause of action, particularly given the limitation period defence.
Costs were awarded to the respondent on a partial indemnity basis, fixed at $30,000 all-inclusive, the court declining to award substantial or full indemnity costs as the case did not constitute one of those rare and exceptional circumstances warranting elevated costs.
