Robert Waddell

In a mortgage enforcement proceeding resolved by summary judgment, the court determined the quantum of costs after prior entitlement to substantial indemnity costs had already been established by contract.

The court applied Rule 57 reasonableness principles, considered proportionality against the judgment amount, and weighed litigation conduct including repeated settlement opportunities and delay-related behaviour.

Although the court accepted that the matter was not unusually sophisticated and reduced the effective hourly allowance, it found most work and disbursements reasonable and necessary.

The court rejected objections that Notice of Sale costs required a separate assessment process under the Mortgage Act and fixed total costs in a reduced but substantial amount payable by the responding party.

The mortgagee brought a motion for summary judgment to enforce a residential mortgage following the mortgagor’s default and sought payment of the outstanding balance, possession of the property, and dismissal of a counterclaim.

The borrower argued that the lender failed to honour a three‑month payment holdback allegedly promised during refinancing and asserted defences including misrepresentation, non est factum, and equitable set‑off.

The court found that the mortgage commitment permitted changes to the holdback if the borrower’s financial representations were inaccurate and concluded that insufficient funds existed to fund the holdback because of undisclosed arrears and higher debts.

The record demonstrated the borrower knew the holdback was unavailable and had multiple opportunities to cure the default but failed to do so.

The court held there was no genuine issue requiring trial under Rule 20 and dismissed the counterclaim.