Joseph Malmazada

Following a trial judgment awarding the plaintiff the return of a $22,000 deposit and dismissing the defendant’s counterclaim, the court addressed costs.

The defendant argued that because the plaintiff’s recovery fell within the monetary jurisdiction of the Small Claims Court, the plaintiff should be denied costs under rule 57.05(1) of the Rules of Civil Procedure.

The court held that denial of costs under rule 57.05(1) is discretionary and not automatic, particularly where the litigation involved complexity and a multi‑day trial.

Considering the defendant’s role in causing the dispute and the complexity of the proceedings, the court exercised its discretion to award costs to the plaintiff.

Applying proportionality and the factors under rule 57.01, the court fixed partial indemnity costs at $27,500.

The plaintiff purchased refrigeration equipment from the defendant for a new retail meat store.

A dispute arose over the payment terms, specifically whether the balance was due before or after the equipment was unloaded at the plaintiff's premises.

The court found that the parties had orally agreed payment would be due only after delivery and installation, making the defendant's refusal to unload the equipment without prior payment a breach of contract.

However, the court held the plaintiff failed to mitigate its damages by refusing to pick up the equipment from the defendant's warehouse, limiting its recovery to the return of its $22,000 deposit.