Peter Albright King Giles

This is a costs endorsement following the Court of Appeal's decision allowing an appeal and setting aside an order made at trial.

The appellant was awarded costs of the appeal fixed at $10,000 all inclusive.

The court declined to determine costs of the motion below, instead leaving that matter to the trial judge to decide after the trial resumes and all outstanding issues have been adjudicated upon, taking into account the result on appeal and any Rule 49 offers.

The appellant appealed a trial judge's decision that structured settlement annuity payments received by the appellant should be treated as property rather than income under the Family Law Act.

The trial judge had found that the annuity payments fell within the definition of property and were not excluded property under section 4(2)3 of the Act, and therefore should not be treated as income for spousal support purposes.

The Court of Appeal allowed the appeal, holding that structured settlement annuity payments should be treated as income, not property, for purposes of the Act.

The appellant appealed a trial judgment awarding the respondents $100,000 in general damages and $75,000 in punitive damages arising from the sale of a farm property.

The Court of Appeal set aside both awards, finding that punitive damages were neither pleaded nor sought, and the general damages for harassment and mental distress were unpleaded and unsupported by expert medical evidence or adequate reasons.

The trial costs award was upheld, and the appellant was awarded costs of the appeal.