David McCutcheon

This decision addresses costs following an application concerning a Co-Tenancy Agreement.

The Applicants sought declarations regarding 'Shared Property' and alleged bad faith by the Co-Tenancy Committee.

The court previously ruled against the Applicants on both issues.

The Respondents sought substantial indemnity costs, while the Applicants and Intervenor argued for reduced or no costs, citing an early offer to settle and proportionality.

The court fixed the Respondents' total costs at $145,000, apportioning $28,000 to the Intervenor and $117,000 to the Applicants, based on partial indemnity for the interpretation issue and substantial indemnity for the bad faith claim due to the Applicants' conduct.

The applicants, owners of a townhouse unit in a co-tenancy development, sought declarations regarding a Co-Tenancy Agreement, specifically whether a perimeter fence and retaining wall were 'Shared Property' and whether the Co-Tenancy Committee acted in bad faith.

The court found that the Co-Tenancy Agreement was ambiguous but, based on the factual matrix and subsequent conduct of the parties, the fence and retaining wall were intended to be Shared Property.

The court also dismissed the applicants' allegations of bad faith against the committee members, finding that the committee acted in good faith and consistently sought legal advice.

The moving party defendant brought a motion to withdraw deemed admissions resulting from its failure to respond to a Request to Admit served nearly two years prior.

At the time of service, the defendant was unrepresented and insolvent, but subsequently obtained insurance coverage and new counsel.

The court applied the three-part test for withdrawing admissions and found that the withdrawal raised a triable issue, there was a reasonable explanation for the change in position, and the plaintiff would not suffer non-compensable prejudice.

The court granted the motion to withdraw the admissions and allowed the defendant to amend its pleadings, with no order as to costs.

The defendant, Frank Jonkman and Sons Limited, brought a motion to withdraw deemed admissions resulting from its failure to respond to a Request to Admit served nearly two years prior.

At the time of service, the defendant was unrepresented and insolvent.

The defendant subsequently obtained insurance coverage and new counsel, who discovered the unresponded Request to Admit shortly before trial.

The court applied the three-part test under Rule 51.05 and granted leave to withdraw the admissions, finding that the change raised a triable issue, there was a reasonable explanation for the change in position, and the plaintiff would not suffer non-compensable prejudice.

The defendant was also granted leave to amend its pleadings.