Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi v.Kyrgyz Republic
Because the appeal succeeded solely on the basis that the Republic was not properly served and the merits were not considered, the Court fixed the costs of the proceeding below at $100,000 inclusive and ordered those costs to be in the cause to be dealt with at the new hearing, with the trial judge to account for...
Source-derived case information.
- Citation
- 2015 ONCA 666
- Parties
- Respondent: Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi; Appellant: Kyrgyz Republic; Appellant: Kyrgyzaltyn JSC
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 1 October 2015
- Procedural Posture
- Civil / Appeal Costs Determination After Successful Appeal on Service and Remittal for New Hearing
- Outcome
- Appeal allowed in part; new hearing ordered; costs below fixed and placed in the cause with conditions.
- Legal Topics
- Service of Originating Documents, Costs in the Cause, Remittal for New Hearing, Bad Faith Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi
Respondent
Kyrgyz Republic
Appellant
Kyrgyzaltyn JSC
Appellant
Procedural Posture
Civil / Appeal Costs Determination After Successful Appeal on Service and Remittal for New Hearing
Legal Issues
- 1 Whether the Republic was properly served with originating documents
- 2 Whether the costs of the original application should be paid to the successful party on appeal or determined by the judge at the new hearing
- 3 Whether allegations of bad faith by the unsuccessful party justify a costs sanction
Ratio Decidendi
Because the appeal succeeded solely on the basis that the Republic was not properly served and the merits were not considered, the Court fixed the costs of the proceeding below at $100,000 inclusive and ordered those costs to be in the cause to be dealt with at the new hearing, with the trial judge to account for any duplication; if no new hearing is commenced within three months the fixed costs will go to the appellant.
Court Disposition
Appeal allowed in part; new hearing ordered; costs below fixed and placed in the cause with conditions.
Orders
- New hearing of the application ordered.
- Costs below fixed at $100,000 inclusive of disbursements and HST, to be in the cause of the application.
Full Case Text
Judgment text and source record
1 paragraphs
Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi v.Kyrgyz Republic Collection Decisions of the Court of Appeal Date 2015-10-01 Neutral citation 2015 ONCA 666 Docket numbers C58711 Judges Hoy, Alexandra; Feldman, Kathryn N.; Lauwers, Peter D. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi v. Kyrgyz Republic, 2015 ONCA 666 DATE: 20151001 DOCKET: C58711 Hoy A.C.J.O., Feldman and Lauwers JJ.A. BETWEEN Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi Respondent and Kyrgyz Republic and Kyrgyzaltyn JSC Appellant J. Brian Casey and Matt Saunders, for the appellant George J. Pollack and Steven G. Frankel, for the respondent Reasons released: June 19, 2015 ENDORSEMENT ON DISPOSITION OF COSTS BELOW [1] Following release of the Reasons for decision and costs on appeal, the parties were unable to agree on the disposition of costs below and asked to make further submissions on that issue. The court has now reviewed those submissions. [2] The appellant was successful on the appeal, based on the respondent’s failure to properly serve the Republic with the originating documents for this application. The court ordered a new hearing and did not address the merits of the issues that were decided by the application judge. [3] The court understands that the respondent intends to proceed with a new hearing of the application. The respondent submits that the costs below should be determined by the judge on the new hearing because, although the appellant was successful on the appeal, it should not be awarded the costs of the original application as those costs relate to the argument on the merits, which the appellant lost and which this court did not address. [4] The appellant makes allegations of bad faith against the respondent and its counsel for the failure to properly serve the Republic and advise the court. These allegations are misplaced. No such finding was made by this court. [5] In our view, there is merit in the position taken by the respondent. The court therefore orders that the costs below, fixed in the amount of $100,000 inclusive of disbursements and HST, will be in the cause of the application, on the understanding that the application judge will take into account any duplication in the preparation for the new application in awarding costs of the new application. If the respondent does not proceed with the application within three months of the release of these reasons, then the costs of the proceeding below, as determined in this paragraph, will go to the appellant. “Alexandra Hoy A.C.J.O.” "K. Feldman J.A." "P. Lauwers J.A."