COURT OF APPEAL FOR ONTARIO

DATE: 20001023

DOCKETS: C24514, C24485 and C27969

RE: PETER C.K. WONG, JENNY K.J. WANG, PETER S.N. CHAN and JOHNNY W.H. CHAN (Plaintiffs/Respondents in Appeal) –and– 407527 ONTARIO LTD., STEVE CURIC, PHOENIX REAL ESTATE LIMITED, CALVIN LIANG and HUI, HUNE and WONG (Defendants/Appellants in Appeal)

BEFORE: AUSTIN, LASKIN and MacPHERSON J.A.

COUNSEL: J. Brian Casey, for the appellant Hui, Hune & WONG

Alfred J. Esterbauer, for the appellant Phoenix Realty Estate Limited

Henry G. Blumberg, for the respondents

On appeal from the decision of Justice Lorraine Gotlib dated March 28, 1996.

ENDORSEMENT ON COSTS

[1] At trial both Hui, Hune & Wong and Phoenix Real Estate Limited were found liable for the plaintiffs’ damages. On appeal, however, this court dismissed the action against Hui, Hune and Wong and held Phoenix liable for only 20 percent of the plaintiffs’ damages, or for $14,797.44. We must now address the costs of the trial and the appeal. We have had the benefit of written submissions on costs from each of the parties.

Costs of the trial

[2] Hui, Hune and Wong was successful at trial. We see no reason to depart from the usual rule that costs follow the event. Accordingly, Hui, Hune and Wong is entitled to recover from the plaintiffs its party-and-party costs of the trial. Those costs should be assessed.

[3] Phoenix was ordered to pay only a modest award of damages to the plaintiff. Nonetheless, in the absence of a rule 49 offer, we exercise our discretion in favour of upholding the costs award against Phoenix made by the trial judge. Thus, Phoenix shall pay costs of the trial to the plaintiffs in the amount of $30,590.30. That amount represents approximately 50 percent of the plaintiffs’ party-and-party costs.

[4] We decline to make either a Bullock or a Sanderson order. Neither is warranted on the facts of this case and especially in the light of the modest damages award.

Costs of the appeal

[5] Both Hui, Hune and Wong and Phoenix were successful on the appeal. Each is entitled to its party-and-party costs of the appeal.

Signed: “Austin J.A.”

“John Laskin J.A.”

“J.C. MacPherson J.A.”