Carmine Giuseppe Scalzi

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The appellant appealed a motion judge's order staying an action for breach of contract.

The motion judge found that the contract required disputes to be resolved by arbitration in South Carolina.

The central issue was whether the contractual rights assigned to the appellant were limited to those in a Joint Venture Marketing Agreement (JVMA) or included terms from an International Sales Agency Agreement (ISAA) containing an arbitration clause.

The Court of Appeal upheld the motion judge's findings that both agreements were assigned to the appellant and that the parties conducted themselves in accordance with the ISAA, including its arbitration clause.

The appellant appealed from a Superior Court decision that found a commercial lease for fitness club premises did not include the basement, despite the tenant's long-standing use of it.

The Court of Appeal reversed, holding that when the lease is interpreted in light of all surrounding circumstances—particularly email correspondence between the parties' lawyers—the parties clearly intended to lease the entire premises, including the basement, on a lump sum basis.

The court found the application judge erred in law by failing to consider all relevant circumstances, despite acknowledging the need to do so.

The defendants, having successfully obtained a stay of action based on an arbitration clause, sought partial and substantial indemnity costs totaling $68,449.55.

The plaintiff conceded entitlement to costs but argued the amount was excessive.

The court applied the principle that costs should be fair and reasonable for the unsuccessful party, not merely the actual costs incurred.

While acknowledging the importance of the matter to the defendants and the plaintiff's conduct contributing to increased costs, the court found the claimed hours excessive for a two-hour motion.

Considering an offer to settle, the court awarded costs at the higher end of a reasonable range, fixing them at $40,000.00.

The plaintiff initiated an action alleging fraud, deceit, and misrepresentation against the defendants concerning a property transaction and mortgage.

Despite early settlement offers from the defendants, the plaintiff did not accept them.

The action was ultimately dismissed on consent immediately prior to a scheduled summary judgment motion.

The court, in this costs ruling, awarded the defendants full indemnity costs, determining that the plaintiff's allegations were ill-founded and significantly detrimental to the defendants' professional reputations, thereby justifying a higher scale of costs.

The defendants sought leave to bring a motion for summary judgment after the action had already been set down for trial.

The court considered whether Rule 48.04(1) of the Rules of Civil Procedure required leave for such a motion and the appropriate test for granting leave.

The court held that summary judgment motions fall within the phrase “any motion” under the rule and therefore require leave once an action has been set down for trial.

However, the court rejected the rigid requirement that the moving party demonstrate a substantial and unexpected change in circumstances.

Leave should be granted where the motion may reduce issues, shorten the trial, or eliminate the need for trial without causing undue delay.