Plante v James

In the matter of Plante v James, the applicants sought leave to appeal against a costs order made by the primary judge. The primary judge had ordered the applicants, who were directors of the plaintiff company, to be jointly and severally liable with the plaintiff for the respondent's costs. The applicants were not parties to the proceeding and were arguing that the primary judge's order was an error of law. The court was required to decide whether the primary judge's order miscarried, whether the plaintiff's inability to pay the judgment debt was brought about by the applicant's wrongdoing, and whether the applicants acted in bad faith.

The court found that the primary judge's discretion to award costs against non-parties miscarried because the applicants were not parties to the proceeding. The court also found that the plaintiff's inability to pay the judgment debt was not brought about by the applicant's wrongdoing, and that the applicants did not act in bad faith. The court noted that the amount of the judgment sum, excluding interest, was less than half of the amount claimed by the respondent, and that the respondent provided notice of its intention to make a non-party costs application only one day before the hearing of the application. The court held that the primary judge's order was an error of law and that the applicants were entitled to have the order varied.

The court granted the applicants leave to appeal and allowed the appeal. The court varied the primary judge's order to provide that the plaintiff pay the defendant's costs of and incidental to the proceedings at first instance on the indemnity basis. The court also ordered that the respondent pay the applicants' costs of and incidental to the hearing of 17 May 2010 and of the appeal. The court held that the primary judge's order was an error of law and that the applicants were entitled to have the order varied. The court further held that the applicants were not liable for the respondent's costs and that the plaintiff was liable for the costs of the proceedings at first instance.