Citation:
 Ngo v. South Pacific Development, Ltd.,
 
 
 2007 BCCA 119
 

Date: （略）

Docket: CA033455

Between:

Theresa Ngo

Appellant

(Plaintiff)

And

South Pacific Development, Ltd.,

Alexander Go, Guilbert Go and Tiong Tam Ngo

Respondents

(Defendants)

Before:
 The Honourable Madam Justice Ryan
 
The Honourable Madam Justice Saunders
 
The Honourable Mr. Justice Lowry
 

T. Ngo
 Appearing on her own behalf
 
C. Chilliak
 Counsel for the Respondents
 
Place and Date of Hearing:
 Vancouver, British Columbia
 
27 February 2006
 
Place and Date of Judgment:
 Vancouver, British Columbia
 
18 April 2006
 
Appellant’s Submissions Received:            15 September 2006
 24 August and 15 September 2006
 
Respondent’s Submissions Received:              8 September 2006

 
 8 September 2006
 
Date of Supplementary Reasons:                                                                   26 February 2007

 
 
Supplementary Reasons on Costs
 
  

Supplementary Reasons of the Honourable Madam Justice Ryan:

Introduction

[1]                These are supplementary reasons on costs following upon the dismissal of the appellant’s appeal.  The facts of the underlying appeal are fully set out in the judgment on appeal which is reported at 2006 BCCA 182.

Background

[2]                The claim underlying this appeal arose from a dispute between Ms. Ngo and her brothers over the beneficial ownership of shares in the respondent company, South Pacific Development, Ltd. (“South Pacific”), and for an accounting of profits in relation thereto.  The dispute led to a protracted lawsuit resulting in part from the defendants’ failure to comply with court orders.

[3]                At trial, Mr. Justice Pitfield struck all the statements of defence, effectively leading to the disposition of the issue of liability.  Pitfield J. went on, however, to grant South Pacific’s request to participate in the damages portion of the trial, as he thought it would assist in efficiently disposing of the remaining questions of valuation.

[4]                Thereafter, Ms. Ngo sought leave to set aside Pitfield J.’s order permitting South Pacific to participate.  This court granted leave but dismissed the appeal largely for the reasons originally given by the trial judge.

[5]                As is customary, the reasons for judgment were silent on the question of costs.  It was not until the assessment of the costs of the appeal were before Registrar Jordan that Ms. Ngo took the position that the court should award no costs to either party, or that costs be fixed at $750.00.  Registrar Jordan adjourned the hearing so that the parties might address the issue to the court.  The parties were permitted to provide written submissions which we have now considered.

[6]                For the reasons that follow, I am of the view that we should not depart from the usual order that costs follow the event.

Discussion

[7]                The narrow question put to the court is whether it should follow the normal course of affairs and award costs to follow the event, or exercise its discretion to make a different order.  Ms. Ngo has pressed the court to exercise its discretion under s. 23 of the Court of Appeal Act, R.S.B.C. 1996, c. 77 (the “Act”) for an order that the court award no costs to either party.  She says that it would be appropriate in light of the strong merits of her appeal and what she refers to as the “contumacious conduct” of South Pacific throughout the course of litigation.  If she must pay costs, Ms. Ngo says that the amount should be fixed at $750.00.

[8]                Needless to say, South Pacific takes the opposite position and says that costs should follow the event.  Although the respondent acknowledges that s. 23 of the Act permits this court to depart from the usual award of costs to the successful party, it submits that it must exercise this discretion judicially.  South Pacific says that it has not exhibited conduct that warrants denying it costs.  It says that it attempted to answer interrogatories in the trial court and gave Ms. Ngo an opportunity to complete the discovery process to her satisfaction.  There were no other circumstances such as a flagrant disregard for the court’s order or harsh or arbitrary conduct.  Accordingly, the respondent maintains that discretion should not be exercised in favour of Ms. Ngo.

[9]                Section 23 of the Act is the locus of this court’s statutory authority to award costs.  It reads:

Unless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal including the costs of all applications made in the appeal.

[10]            These words stand for the singular proposition that the successful party in litigation should not have to bear the full costs of vindicating its rights and, more importantly, should not have to bear the costs of the other party.  However, the Court of Appeal Act also recognizes this court’s discretion to order otherwise and confers upon it the ability to award costs so as to do justice between the parties.  As one scholar describes it, the discretion allows the court to “mould its order so as to do justice”:  M.M. Orkin, The Law of Costs, 2d ed., looseleaf (1987) at 8-12.

[11]            Counsel for South Pacific has submitted that in this case justice would not be accomplished through an order that no costs be awarded to either party.  Relying on Robertson and cases cited therein, the respondent submits that in the absence of a good reason, such as harsh or arbitrary treatment of Ms. Ngo, this court should not exercise discretion in her favour.  As stated by Madam Justice Huddart in Robertson (at para. 6):

Nevertheless, a review of the authorities reveals that a court is unlikely to depart from the general rule that costs follow the event in the absence of misconduct or a good reason particular to the case and relevant to the lis between the parties that makes it equitable to do so.

[12]            In Robertson, the court exercised its discretion so as to deny costs on the appeal.  There, the successful defendant’s conduct was said to be the substantial cause of the litigation because it failed to provide a relevant document, a letter, until late in the process and the appellant acted reasonably in advancing the appeal.  This militated in favour of denying costs to the successful party.

[13]            This court reached a similar conclusion in Terasen Gas Inc. v. Alpha Manufacturing Inc., [2005] B.C.J. No. 532 (Q.L.) (C.A.), where it declined to order costs to the successful appellant because he had unduly complicated and lengthened the proceedings.  The court found that the appellant had pursued numerous applications and proceedings that achieved substantially the same result as could have been achieved had the appeal been pursued in a timely fashion.  Furthermore, the court emphasised (at para. 14) that the successful party was “largely responsible for putting itself in the difficult position from which its success in the Main Appeal finally extricated it.”

[14]            There are parallels between Robertson, supra, and Terasen, supra, in the case at bar.  The overall litigation in the trial court has been fraught with such difficulty that Mr. Justice Pitfield described the proceedings as “tortuous”.  And while he distinguished between the conduct of the personal defendants and South Pacific, he stated:

I have been directed by counsel for South Pacific to response which counsel says represent a reasonable effort on behalf of the company to provide information.  I have also been directed by Ms. Ngo to specific questions which have, on any view one takes on it, not been adequately answered, if at all.  In that regard, I refer to the interrogatories annexed to Mr. Go’s affidavit, and specifically questions 14, and 16.  The material is replete with other instances, including the response to question 13, where the company, plain and simple, through its principals has not been forthcoming with Court or the plaintiff in supplying answers.

[Emphasis added.]

[15]            The difference, however, between the case at bar and Robertson and Terasen is that at the time this appeal was taken, the assessment of damages was outstanding in the trial court.  I note that in his reasons for judgment of May 24, 2005, from which Ms. Ngo’s appeal to this court was taken, Mr. Justice Pitfield said this at para. 22:

In the result, the applications to strike the defences filed by South Pacific Development Ltd., Alexander Go, Guilbert Go and Tiong Tam Ngo are granted.  The plaintiff is entitled to include in the calculation of her damages . . . a claim for costs.

[16]            Thus, at the time of the appeal to this court Mr. Justice Pitfield had yet to make an order with respect to costs.  Furthermore, there is no complaint that the respondent did not properly conduct itself in this court.  If anything, it was Ms. Ngo who tended to prolong the proceedings in this court.  In that regard, I refer to the unreported reasons for judgment of Mr. Justice Thackray in Ngo v. South Pacific Development Ltd. et al. (9 February 2006) CA033455, CA033597 (C.A.).  In these circumstances, I am of the view that the issue of the respondent’s conduct at trial and how it might affect an award of costs at the conclusion of the assessment of damages ought to be left to the trial judge.

[17]            While I appreciate that there was merit in Ms. Ngo’s appeal because of a division in the case law in the trial court, the issue was ultimately resolved here in the respondent’s favour.  In my view, Ms. Ngo has not demonstrated a good reason for this court to depart from the general rule that costs follow the event.

[18]            I would order that the successful party, the respondent, is entitled to the costs of the appeal.

“The Honourable Madam Justice Ryan”

I agree:

“The Honourable Madam Justice Saunders”

I agree:

“The Honourable Mr. Justice Lowry”