Where a party succeeds on appeal in establishing an issue that formed the basis for a costs discount below, the appellate court will re-exercise the costs discretion to reflect that success. However, the successful party's costs may still be discounted for time spent at trial on issues on which it failed and which were not disturbed on appeal. A party that has already been subject to a costs thrown away order for abandoned pleadings should not suffer a further costs discount for the same conduct. An application to vary an appeal costs order must be made by notice of motion within 14 days under UCPR r 36.16(3A).
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