R. Christopher M. Belsito

The appellants appealed an order of the Superior Court refusing to enjoin the sale of a development property under power of sale.

The appellants sought to have the court find that the property was sold in bad faith and for an undervalue.

The Court of Appeal dismissed the appeal, finding that it was not open to the court to grant the relief sought as the appeal was from the order, not the findings of the application judge.

The court noted that the appellants could pursue an improvident sale action, which had been expressly left open by the application judge.

The court upheld the costs award to the respondent.

The appellant contractor abandoned a parking lot expansion project after the respondent owner refused to pay the second instalment.

The appellant registered a construction lien for the full unpaid balance of the contract and sued for quantum meruit.

The trial judge found the respondent breached the contract but held the appellant liable under s. 35 of the Construction Lien Act for filing a grossly excessive lien, ultimately awarding a net judgment and $55,000 in costs to the respondent.

On appeal, the Court of Appeal upheld the trial judge's findings on breach, quantum meruit, and s. 35 liability, noting the appellant failed to elect damages for breach of contract.

However, the Court set aside the trial costs award, finding it disproportionate given the appellant's success on the central issue of breach, and ordered no costs throughout.