David J. Medcalf

This was a standalone costs ruling following a trial involving a farm sale dispute and related counterclaim.

The successful party sought substantial indemnity costs from the date of an unaccepted offer to settle.

The court considered the Rule 57.01 factors and found merit in the request, but held the offer was not truly one of compromise because it required total capitulation.

Costs were awarded on a partial indemnity basis in the amount of $46,000 inclusive of fees, disbursements and taxes, payable forthwith.

In a dispute arising from the sale of a farm property with a large swine barn, the purchasers by counterclaim alleged negligent misrepresentation, intentional interference with economic interests, and breach of the duty of good faith after discovering on closing that the barn was empty of pigs.

The court held the purchasers had been told there was no written hog supply contract and that the arrangement with the supplier was merely an 'evergreen' verbal arrangement terminable at will.

Applying the negligent misrepresentation framework and the Supreme Court's articulation of honest performance in Bhasin, the court found no actionable misrepresentation and no dishonest contractual performance.

The purchasers received the farm property they had contracted to buy, and the counterclaim for the loss on subsequent resale was dismissed.