Robert Matlack

The appellants brought a motion in writing to amend a previous decision of the Divisional Court, which had allowed their appeal but did not award costs of the underlying action due to a misunderstanding that they were not sought.

As no order had yet been issued or entered, the court remained seized under Rule 59.06(2)(d) of the Rules of Civil Procedure.

The court granted the motion, finding that the appellants were entitled to costs of the action based on their successful appeal, and awarded $25,000 in costs.

The appellants appealed a trial judgment awarding the respondent $25,000 on an unpaid invoice for engineering services.

The trial judge had rejected the appellants' limitation defence, finding the limitation period was suspended during settlement discussions.

The Divisional Court allowed the appeal, finding the trial judge misapprehended the evidence.

The court held that the limitation period expired before any settlement discussions took place, as the appellants had refused to pay the full invoice amount more than two years prior to the commencement of the action.

The judgment and costs order were set aside.