Derek Edward Daniel Zulianello

The defendant and third party sought an order bifurcating the trial of the main action and the third party claim arising from a construction tender dispute relating to baggage handling infrastructure at an airport.

The plaintiff opposed the motion, arguing that the rules presume the main action and third party claim will be tried together and that the factual issues overlap.

The court held that the moving parties had not sought leave to bring the motion after the action had been set down for trial, which alone justified dismissal.

The court further found that the claims shared common factual underpinnings concerning the tendering process and that bifurcation would create inefficiencies and risk inconsistent findings.

The motion to try the third party claim separately was dismissed.

The successful plaintiff sought costs following judgment in an action for accounting services, requesting partial indemnity costs to the date of its Rule 49 offer to settle and substantial indemnity costs thereafter.

The defendant argued the offer was not a genuine settlement offer because it demanded the full amount claimed and that the case involved a substantive defence.

The court held that although an offer to settle need not contain an element of compromise, the claim was not a liquidated claim and the defendant had raised a defence of substance regarding whether it was liable as principal or agent.

Exercising its discretion under Rule 49.10(1), the court ordered otherwise and declined to award substantial indemnity costs.

Costs were awarded on a partial indemnity basis throughout.