M.S. Stratton

Following a trial where the plaintiffs were granted judgment against the individual defendant for the return of a deposit on a residential home, the court determined the costs of the proceeding.

The court found that the plaintiffs' offer to settle did not engage Rule 49.10 because it contemplated payment by both defendants, whereas the corporate defendant was successful in having the claim against it dismissed.

Costs were awarded to the plaintiffs on a partial indemnity scale fixed at $28,586.15, payable by the individual defendant.

The plaintiffs entered into an oral agreement with the defendant builder to purchase a newly constructed home and paid a $150,000 deposit.

Prior to closing, disputes arose regarding a zoning by-law breach related to a deck and the extent of the home warranty to be provided.

The plaintiffs repudiated the agreement and sought the return of their deposit, while the defendant claimed the deposit was forfeited.

The court found that the defendant breached the agreement regarding the warranty, entitling the plaintiffs to lawfully repudiate and recover their deposit.

In the alternative, the court held that even if the repudiation was unlawful, the plaintiffs would be entitled to full relief from forfeiture because the deposit amount was entirely disproportionate to the defendant's actual losses.