Bruce Cook

The appellant, having successfully reduced the trial damages award on appeal to an amount lower than its pre-appeal offer to settle, sought costs of $11,347.53.

The respondents argued for no costs due to divided success.

Applying the principles from Boucher, the court rejected a purely mechanical calculation of hours and fixed costs at $5,000 plus disbursements and GST, finding this amount to be fair, reasonable, and within the reasonable expectations of the parties.

The appellant appealed a Small Claims Court judgment awarding the respondents damages for goods damaged during a move using a rented truck.

The Divisional Court upheld the finding of liability and the sufficiency of evidence for the damages.

However, the court found the trial judge erred by failing to account for depreciation of the damaged items and by awarding the cost of the truck rental and mileage, which amounted to unjust enrichment.

The damages award was reduced accordingly.