David Michael Willer

Following several days of motion proceedings in a civil action, the court addressed the issue of costs.

The judge found that both sides engaged in blameworthy conduct that wasted court time and caused unnecessary expense, including inadequate particularization of a motion and delayed production of a redacted response to a demand for particulars.

After the production of the redacted response, the majority of the hearing time was spent on the applicants’ motion to strike the entire action, which the court dismissed.

The court concluded that substantial indemnity costs were not appropriate but awarded the respondent partial indemnity costs for the motion.

Costs were fixed at $22,138.96, representing four-fifths of the amount requested, payable at the end of trial.

The applicants brought a motion at the outset of a scheduled trial seeking to strike the respondent’s allegations of fraud relating to a prior family law settlement and order.

The respondent alleged that the applicants intentionally failed to disclose income, assets, and bank accounts when the minutes of settlement were executed, thereby fraudulently inducing the settlement.

The court held that the issue of fraud had not previously been adjudicated and therefore cause of action estoppel did not apply.

The court further found that issues such as inducement, due diligence, alleged joint ventures, and inconsistencies in prior evidence required a full evidentiary record.

The motion was dismissed and the matter was directed to proceed to trial on the fraud allegations.