Darryl Mann

The plaintiffs brought a motion to hold the defendant in contempt of court for repeatedly refusing to attend examinations for discovery in breach of multiple court orders.

The court found the defendant in civil contempt, noting his deliberate manipulation of the process and failure to comply despite prior indulgences.

The defendant was sentenced to 60 days of incarceration, a $10,000 fine, and ordered to pay $170,000 in costs on a substantial indemnity basis.

Following a motion, the court determined the appropriate costs award between the parties.

The successful party sought costs on a substantial indemnity basis and relied on an earlier offer to settle under Rule 49 of the Rules of Civil Procedure.

The court rejected the argument that the motion had little chance of success and declined to award substantial indemnity costs.

It also found that the offer to settle related to the entire action rather than the summary judgment motion and therefore did not trigger Rule 49 cost consequences.

The plaintiff moved for summary judgment seeking payment of approximately $2.53 million under a promissory note issued as part of a share sale transaction.

The defendant argued that payment obligations under the note were conditional upon its compliance with financial covenants contained in a specific 2007 banking facility letter with its lender.

The court interpreted the promissory note and held that the relevant covenants were those contained in the specifically referenced 2007 facility letter, not later amendments.

Because the defendant could not make payment without breaching those original covenants, the condition precedent to payment had not been satisfied.

The motion for summary judgment was therefore denied.