G. Govedaris

This was a costs-only decision arising from a settled motion for default judgment in a construction lien action.

The moving party had sought default judgment validating a lien and personal judgment, but the motion was resolved by consent through setting aside the noting in default and requiring delivery of a defence, leaving only costs in dispute.

The court declined to award costs of the motion because the merits were not argued and it could not determine necessity or success, but awarded full costs thrown away from the noting in default in the amount of $651 including HST.

The court preserved the balance of the moving party’s claimed motion costs as potentially claimable costs of the action and provided non-binding commentary on unresolved procedural and jurisdictional questions concerning default judgment in lien actions.

The appellants (vendors) appealed a Small Claims Court decision awarding the respondent (purchaser) $17,488.27 in damages for a breach of warranty in a residential real estate transaction.

The trial judge found the vendors failed to disclose an HVAC rental contract and removed fixtures prior to closing.

The Superior Court of Justice applied the palpable and overriding error standard of review and found no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed with costs awarded to the respondent.