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No costs awarded where both parties abandoned their respective claim and counterclaim at trial.
Following a settlement on the first day of trial, the plaintiff and the Kinofilm defendants abandoned their respective claim and counterclaim against each other.
The Kinofilm defendants sought $500,000 in substantial indemnity costs, arguing the plaintiff's actions amounted to a de facto discontinuance under Rule 23.
The court rejected this argument, finding that Rule 23 did not apply as no Notice of Discontinuance was delivered.
Because both parties made substantial claims against each other and both elected not to pursue them, the court found the costs claims to be broadly equivalent and offsetting, making no order as to costs.
