R. Belsito

The plaintiff brought a motion for default judgment after the defendant failed to close an agreement of purchase and sale for a residential property.

The defendant had agreed to purchase the property for $3,660,000 and paid a $100,000 deposit, but breached the agreement.

The plaintiff subsequently sold the property for $3,200,000 and sought damages for the difference in sale price and carrying costs.

The court granted default judgment, ordering the forfeiture of the deposit to be applied against the plaintiff's total damages, resulting in a net damages award of $405,346.47 plus costs.

The plaintiff was successful on the main issue of a motion but unsuccessful on the leave issue.

The parties made written submissions on costs.

The defendant argued costs should be in the cause of the appeal and sought a reduction in quantum.

The court held there was no reason to deviate from the general rule that costs are payable within 30 days.

The court reduced the plaintiff's claimed costs to account for excessive time and the issue on which the plaintiff was unsuccessful, awarding costs of $6,349 all inclusive.

The defendant owner brought a motion pending the plaintiff's appeal of a construction lien trial judgment, seeking security for costs and the return of monies posted to vacate the lien.

The court held that leave under s. 67(2) of the Construction Lien Act is not required for appellate interlocutory motions.

The court dismissed the request to return the monies, noting the judgment was stayed pending appeal.

The court also dismissed the motion for security for costs under Rule 61.06, finding the owner failed to establish that the appeal was frivolous and vexatious or that the plaintiff lacked exigible assets, and found no special circumstances justifying an order under the residual discretion.