Samuel M. Atkin

Following a successful motion for summary judgment and specific performance regarding agreements of purchase and sale, the plaintiffs sought costs on a substantial indemnity basis.

The court found that the defendant acted in bad faith and considered the plaintiffs' Rule 49 offers.

The court rejected the plaintiffs' requested amount of $41,187, finding it excessive given the unified representation of the three plaintiffs.

Instead, the court awarded the plaintiffs substantial indemnity costs fixed at $17,500, using the defendant's own full indemnity cost outline as a benchmark for reasonableness.

The plaintiffs (purchasers) and defendants (vendors) entered into an agreement of purchase and sale for a residential property.

On the closing date, the plaintiffs' bridge financing was delayed, and they failed to tender the closing funds by the 6:00 p.m. deadline.

The agreement contained a 'time is of the essence' clause.

The next day, the plaintiffs tendered the funds, but the defendants refused to close unless the purchase price was increased by $50,000.

The plaintiffs made counteroffers, which were rejected.

The plaintiffs sued for specific performance and brought a motion for summary judgment, while the defendants brought a cross-motion for summary judgment.

The court dismissed the plaintiffs' motion and granted the defendants' cross-motion, finding that the defendants acted in good faith, were ready to close, and were entitled to rely on the 'time is of the essence' clause to terminate the agreement.