David K. Alderson

Following an appeal from summary judgment decisions in two related actions involving fraudulent investment schemes, the Court of Appeal determined the costs of the motions and the appeals.

The court upheld the costs and Sanderson order in favour of the successful Mauldin group.

However, because the appellant successfully appealed the summary judgment in the Bruno action, the court set aside the costs and Sanderson order in favour of Bruno, reserving the motion costs to the trial judge and making Bruno liable for the co-defendants' costs.

Costs of the appeals were awarded on a partial indemnity scale.

The appellant financed the respondent's purchase of equipment through a lease agreement.

The respondent sued, alleging the equipment was defective, and the appellant counterclaimed for default under the lease, moving for summary judgment.

The motion judge dismissed the appellant's motion and counterclaim, finding no contract existed due to delay in acceptance and intervening defects.

The Court of Appeal allowed the appeal, holding there were triable issues regarding whether the contract was accepted by conduct and whether the goods' condition changed, and restored the counterclaim for trial.