The appellant appealed a trial judge's order awarding the respondents costs on a substantial indemnity basis.
The Court of Appeal found that the trial judge erred in relying on three factors: the alleged lack of merit in the claim, non-Rule 49 offers to settle that contained no compromise, and an unproven allegation of 'sharp practice' by the appellant's former counsel during a prior motion.
The appeal was allowed, the costs order was set aside, and partial indemnity costs of $40,000 were substituted.
