James Kenneth Ball

Dunn Aggregates Limited appealed a Superior Court order barring its claim for damages under an undertaking given by Coco Paving Inc. for an interlocutory injunction.

The injunction had restrained Dunn Aggregates from breaching non-competition and restrictive covenant agreements.

The trial judge found that Coco Paving was the successful party at trial, meaning the injunction was not 'wrongfully granted,' and thus Dunn Aggregates was not entitled to damages under the undertaking.

The Court of Appeal affirmed the trial judge's decision, finding no special circumstances to warrant damages based on the undertaking.

The plaintiff, Front Construction Industries Inc., brought an action against the defendant, 38-44 Chatham Street East (2012) Limited (the "Owner"), for payment of an unpaid holdback and two claims for extras related to a construction project.

The Owner counterclaimed for significant delay damages, alleging Front Construction's failure to diligently perform work caused a loss of a long-term leasing opportunity.

The court found in favour of Front Construction, allowing its claims for the unpaid holdback and both extras, and dismissed the Owner's counterclaim for delay, concluding that Front Construction was not responsible for the alleged delay or the tenant's failure to occupy the premises.

The appellant municipality appealed a trial judgment finding that it had improperly used a post-tender addendum process as a form of "bid shopping" after accepting the respondent's bid.

The trial judge found that a contract had been formed when the municipality's council resolved to award the contract to the respondent, and that the subsequent re-tendering process and award to another bidder constituted a breach of the municipality's contractual obligations.

The Court of Appeal upheld the trial judge's decision, affirming that all bidders must be treated fairly in the tender process and that once a bid is accepted and a resolution issued, the municipality is obligated to issue a purchase order incorporating the agreed contract terms.

The court considered whether a superior court has jurisdiction to order costs against a non-party beyond the traditional "person of straw" scenario.

The respondent Azzopardi caused his company (131) to commence an action against the appellant for breach of contract and unjust enrichment arising from alleged tax consulting services.

The trial judge dismissed both actions and refused to award costs against Azzopardi personally, finding that 131 was not a person of straw put forward to shield Azzopardi from costs liability.

The Court of Appeal allowed the appeal, holding that courts have inherent jurisdiction to order costs against non-parties who commit abuse of process, separate from and broader than the statutory "person of straw" test.

The court found that Azzopardi's conduct in bringing a fictitious action through a nominal plaintiff constituted an abuse of process warranting a costs award against him personally.