Remely v O'Shea (No. 2)

The plaintiff in this case, Remely, sought to set aside a default costs assessment made against them under rule 708 of the Uniform Civil Procedure Rules. The respondents, O'Shea, argued that they were entitled to recover certain prospective costs that had not yet been incurred. The legal issue before the court was whether the respondents could claim these costs before they were actually incurred. Additionally, the court had to determine whether the defendants were entitled to costs on an indemnity basis, particularly given that they had previously sought to limit the costs and had made an offer that was ignored by the plaintiff.

The court examined the nature of the costs in question and whether they could be claimed before they were actually incurred. It was found that the prospective costs were not yet due and therefore could not be claimed. The court also considered the defendants' entitlement to costs on an indemnity basis, taking into account the previous offer to limit costs and its subsequent rejection by the plaintiff. The court determined that the plaintiff's rejection of the offer warranted the defendants being awarded costs on an indemnity basis.

Consequently, the court dismissed the plaintiff's application to set aside the default costs assessment. It removed the stay of the warrant of execution previously ordered and directed that the plaintiff pay the respondents' costs for certain applications on both standard and indemnity bases. The plaintiff was also ordered to pay the costs of the second respondent in respect of the application filed on 30 June 2008 on the standard basis.