Darcia Perry

Following the dismissal of the action against it, the defendant Covanta sought partial indemnity costs of $62,323.43 plus incidental costs of $312,887.85.

The plaintiff argued the amounts were excessive and that incidental costs were effectively a claim for damages.

The court agreed with the plaintiff, finding the incidental costs inappropriate for a summary costs motion and the legal fees excessive compared to the plaintiff's own costs outline.

The court fixed costs at $40,000 payable by the plaintiff to Covanta.

The moving party, an owner/contractor on a construction project, brought a motion under section 47(1) of the Construction Lien Act to dismiss the plaintiff's action against it.

The plaintiff's construction lien had previously been vacated by the posting of security by the general contractor.

The court held that once a lien is vacated by the posting of security, the owner is no longer a proper party to the lien action as there is no privity of contract.

Furthermore, the court applied binding appellate authority to hold that claims for unjust enrichment and quantum meruit cannot be joined in a lien action under section 55(1) of the Act.

The motion was granted and the action against the moving party was dismissed.

The appellant commenced a construction lien action against the respondent, who counterclaimed for breach of contract and negligence.

The lien claim was dismissed, but the counterclaim proceeded to trial within the same action, resulting in a judgment for the respondent.

The appellant appealed to the Court of Appeal.

The respondent brought a motion to quash the appeal for want of jurisdiction, arguing the appeal lay to the Divisional Court under s. 71(1) of the Construction Lien Act.

The Court of Appeal granted the motion, holding that a judgment on a counterclaim in a construction lien action remains a judgment under the Act unless explicitly transferred to the ordinary procedure.

The appeal was transferred to the Divisional Court.