Colin C. Taylor

Following the dismissal of an appeal regarding a summary judgment motion, the parties made written submissions on costs.

The respondents sought costs on a partial and substantial indemnity basis, while the appellant argued costs should be in the cause due to the unique circumstances and ongoing litigation in Kuwait.

The Divisional Court agreed with the motions judge that the costs claimed were excessive and ordered that the costs of the leave to appeal motion and the appeal be fixed and payable in the cause.

The appellant appealed the dismissal of her motion for summary judgment against the respondent bank.

The dispute involved funds in a bank account originally owned by the appellant's mother, which the bank had transferred to the appellant's brother.

A Kuwaiti court had ruled that the funds belonged to the appellant.

The Divisional Court found that the Kuwaiti judgment was final and that the bank was a privy to the brother, meaning it would be bound by the foreign judgment through issue estoppel.

However, the appeal was dismissed because the appellant's pleadings had not been amended to properly base the claim on the foreign judgment.

In an addendum regarding costs following an appeal, the judge considered the submissions of the parties and the factors set out in Rule 57.01 of the Rules of Civil Procedure.

The judge determined that the disposition of costs should be left to the full panel of the Divisional Court.

The plaintiff sought leave to appeal a decision dismissing her motion for summary judgment against the defendant bank.

The underlying action involved the bank transferring funds from the plaintiff's deceased mother's account to her brother, despite a Kuwaiti court ruling that the funds belonged to the plaintiff.

The motion judge had dismissed the summary judgment motion, finding a genuine issue for trial regarding whether the Kuwaiti decision established the facts pleaded.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision to look behind the foreign judgment's reasoning.