Following certification of a class action concerning an allegedly negligent tax opinion related to a timeshare charitable donation program, the court was required to determine costs of the certification motion after the Court of Appeal reversed the motion judge and certified the action.
The plaintiff sought more than $355,000 including substantial indemnity costs based on an unaccepted offer to settle.
The court rejected substantial indemnity costs, finding the offer tactical and unlikely to be accepted given a serious limitation defence.
Exercising discretion, the court awarded partial indemnity costs totaling $298,582.71, with $150,000 payable in the cause and the remainder payable forthwith.
No costs were ordered against certain third parties who had limited participation in the certification motion.
