Alan Lenczner QC

The successful defendants on a summary judgment motion sought substantial indemnity costs.

The plaintiffs, who were the responding parties to the costs motion, argued for no costs or, alternatively, partial indemnity with substantial reductions.

The court found no reason to depart from the usual rule that successful parties should be awarded costs.

However, it determined that substantial indemnity costs were not warranted as the plaintiffs' action, while unsuccessful, was not devoid of merit.

The court awarded partial indemnity costs, applying principles of proportionality and reasonable expectations, and fixed the all-inclusive amount at $50,000, a reduction from the $72,128.46 partial indemnity initially claimed.

The plaintiffs, owners of a fitness club, sued the defendants for alleged misrepresentations regarding the availability of parking spaces and for failing to provide adequate alternative parking during construction.

The defendants brought a motion for summary judgment.

The court found that the misrepresentation claims were barred by the 'four corners' clause in the lease agreement, the releases signed by the parties, and the expiry of the two-year limitation period, as there was no evidence of fraudulent misrepresentation or concealment.

The court also found no triable issue regarding the alternative parking, as the plaintiffs failed to provide sufficient evidence that membership cancellations were linked to parking issues.

The motion for summary judgment was granted and the claims against the moving defendants were dismissed.