David S. Swift

Following a successful urgent motion to compel the sale of commercial real estate, the court determined the costs payable by the unsuccessful co-owner who opposed the sale.

The court considered the factors under Rule 57.01(1) and the principle of proportionality.

Costs were awarded to the moving parties in the amount of $6,000 and to the supporting respondent in the amount of $3,350, payable by the opposing respondent.

The appellant appealed a Small Claims Court decision that found a default clause in its standard form motor vehicle lease to be an unenforceable penalty clause.

The trial judge had awarded reduced damages to the appellant.

On appeal, the Divisional Court held that the trial judge failed to account for the appellant's expenses in retailing a motor vehicle.

The court found the default clause was a genuine pre-estimate of damages, not a penalty, and allowed the appeal, awarding the appellant the maximum Small Claims Court jurisdiction of $10,000 plus costs.