D. Preger

During case management for an anticipated summary judgment motion in a construction-related dispute, the plaintiff faced delays producing documents due to the deaths of individuals involved and the fact that many relevant records were held by contractors, subcontractors, and third-party service providers.

The court ordered the plaintiff to use its best efforts to obtain and produce relevant documents by a specified deadline.

The court emphasized that voluntary cooperation by non-parties would avoid formal motions for non-party production and potential cost consequences.

A further case conference was directed to schedule cross-examinations or any required non-party production motions.

Motions were brought to oppose confirmation of a master's interim report under the Construction Lien Act determining the relationship between an owner and a construction firm.

The master concluded the relationship was one of owner and general contractor rather than owner and construction manager, affecting calculation of statutory holdback obligations and priority among lien claimants and mortgagees.

The moving parties argued the master misinterpreted the contract, improperly relied on extrinsic evidence, and incorrectly considered industry standards.

The court held that the master properly found ambiguity created by amendments to a standard form construction management contract and appropriately considered extrinsic evidence and the parties’ conduct in performing the contract.

Finding no reversible error in the contractual interpretation, the court confirmed the master’s interim report.

Following a bifurcated trial where the plaintiff was successful in establishing an owner-contractor relationship, the court determined the costs payable for the first issue.

The court found the plaintiff's offer to settle did not attract substantial indemnity costs as it was served less than seven days before trial.

The court declined to order costs payable from the receiver's reserve fund, finding the receiver unreasonably duplicated the mortgagee's efforts.

Costs were fixed on a partial indemnity scale at $68,421.97, payable by the mortgagees, with payment deferred until the completion of the reference trial.