J.G. Murdoch

Following a successful application regarding a dispute between a first and second mortgagee, the applicant sought costs of $43,885.29.

The respondent did not deliver costs submissions.

The court found the requested amount, calculated on a partial indemnity basis up to the date of an offer to settle and substantial indemnity thereafter, to be reasonable and awarded the full amount.

The applicant, a second mortgagee, sought a determination of the date the respondent, the first mortgagee, became a mortgagee in possession.

The court examined the terms of a forbearance agreement between the first mortgagee and the mortgagor, along with the parties' conduct.

The court concluded that the first mortgagee took complete control of the property and the mortgagor's business operations through the forbearance agreement, thereby becoming a mortgagee in possession on the date the agreement was signed, rather than the later date of the mortgagor's bankruptcy.

This determination impacts the calculation of the mortgagor's indebtedness to the first mortgagee and the second mortgagee's interest in the property's sale proceeds.