SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NOS.: CV-10-405576 and CV-10-405575
DATE: 20120217

RE: TERRADYNE CONSTRUCTION MANAGEMENT LTD., Plaintiff

AND:

6832458 Canada Inc., Defendant

AND RE: JAKMAN ENGINEERING LTD. Plaintiff

AND:

6832458 Canada Inc., Defendant

BEFORE: Low J.

COUNSEL:
Neil Kotnala, for the Plaintiff
Christopher J. Cosgriffe, for the Defendant

HEARD: In writing

COSTS ENDORSEMENT

[ 1 ] On November 30, 2011, I granted an ex parte Mareva injunction in each action relating to the disposition of a real property by the defendant in both actions. The order permitted the defendant to move on twenty-four hours notice to set aside the orders. The motions were to be returned with notice on December 7, 2011.

[ 2 ] The sale of the property was closed in escrow on December 1, 2011.

[ 3 ] On December 7, 2011, the injunctions were dissolved as it appeared on the evidence adduced by the defendant that there would not be any net proceeds from the sale.

[ 4 ] The defendant seeks costs of the motions on a substantial indemnity scale in the amount of $11,740.70, or, alternatively, $8,929.82 on a partial indemnity scale. The plaintiff’s position is that substantial indemnity costs are not warranted and that in the totality of the circumstances, costs ought to be awarded in the cause.

[ 5 ] The issue of whether the defendant should be awarded damages resulting from the granting of the injunction has not been litigated or decided. The central issue before the court on December 7 was whether there were any net proceeds that ought to be caught by the order and preserved pending the outcome of the claim.

[ 6 ] The costs of the motion on December 7, 2011 should not be conflated with any damages flowing to the defendant by the granting of the ex parte injunction which the plaintiff ought to pay. That is an issue for another day that can only be determined on an examination of the conduct of the parties on a full record.

[ 7 ] The defendant was successful on the motions and should have its costs. I fix those costs at $6,500 on a partial indemnity basis, payable upon termination of the action. The two motions were argued together. The same counsel appeared on both matters and the costs are indivisible. The liability for the sum of $6,500 is therefore to be joint as between the plaintiffs in the two actions. The difference between this and the full indemnity costs of litigating the injunction may be part of the defendant’s damages claim to be decided in due course.

Low J.

Date: February 17, 2012