Anna M. Esposito

The plaintiff requested a reconsideration of the court's original costs award of $38,000, noting that a sealed Rule 49 offer to settle had not been brought to the judge's attention.

The court reviewed the offer and found that the plaintiff was more successful at trial than the offer advanced.

Applying Rule 49, the court determined the plaintiff was entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

After applying reductions for duplication of effort and proportionality, the court increased the costs award to $58,000.

The plaintiff manufacturer sued for unpaid invoices arising from the supply of loading dock restraint systems, while the defendant dealer counterclaimed for replacement costs and lost business opportunities based on alleged defects, breach of warranty, negligence, negligent misrepresentation, and equitable set-off.

The court found the defendant had selected the product on its own, knowingly took a commercial risk, and failed to prove any product defect.

The defendant's metallurgy expert was admitted but given no weight because his opinion was biased, methodologically unsound, and based on unverified assumptions.

The court held there was no breach of warranty, no negligence, no negligent misrepresentation, and no basis for equitable set-off.

Judgment was granted for the unpaid invoices with contractual pre-judgment interest, post-judgment interest, and partial indemnity costs.

The appellants appealed an order of the Divisional Court regarding a motion to set aside a noting of default and default judgment.

The Court of Appeal found no evidence to support a defence for the conceded construction costs of $336,409.34, but found evidence capable of supporting a defence for the remainder of the respondent's claims.

The Court varied the principal amount of the default judgment from $2,536,789.00 to $336,409.34 and allowed the respondent's claim for the additional amounts to proceed, while maintaining the writs of seizure and sale and registered liens pending trial.

The appellants appealed an order of the Divisional Court.

The Court of Appeal amended its previous endorsement to permit the appellants to raise the issue of the appropriate interest rate when the respondent's claim for additional amounts proceeds.

The principal amount of the judgment was varied from $2,536,789.00 to $336,409.34, with writs of seizure and sale and registered liens remaining in place pending trial or settlement.

The appellants appealed a decision refusing to set aside a default judgment signed by the Registrar for over $2.5 million.

The majority of the Divisional Court dismissed the appeal.

In these dissenting reasons, Matlow J. would have allowed the appeal and set aside the default judgment, finding that the plaintiff's claim for increased construction contract costs was for unliquidated damages, not a liquidated sum, meaning the Registrar lacked jurisdiction to sign the judgment under Rule 19.04(1)(a).

The appellants appealed a decision refusing to set aside a noting of default and a default judgment of over $2.5 million in a construction lien action.

The appellants argued the Registrar lacked jurisdiction to sign the default judgment because the claim was not for a liquidated demand.

The Divisional Court dismissed the appeal, finding the claim was for a liquidated demand supported by detailed invoices and a signed change order.

The court also upheld the motions judge's finding that the appellants had no arguable defence on the merits.