Anthony E. Cusinato

Following an appeal from the Small Claims Court where success was divided between the appellants and respondents, the court received written submissions on costs.

The appellants argued they had made an offer to settle that remained open, but the court noted that under Rule 14.03(3) of the Small Claims Court Rules, an offer expires when the court disposes of the claim.

Applying the general rule that no costs should be allowed where success is divided, the court ordered no costs.

The appellants appealed a Small Claims Court decision dismissing their claim for breach of contract against the vendor and real estate agents regarding a defective hot-tub and 'newer windows' in a purchased home.

The Divisional Court upheld the dismissal regarding the windows, finding caveat emptor applied.

However, the court allowed the appeal regarding the hot-tub, finding that the vendor's warranty that the hot-tub was in good mechanical working order was a collateral stipulation intended to survive closing and did not merge upon the transfer of title.

Damages of $4,500 were awarded, apportioned equally between the vendor and the real estate agents.