SUPERIOR COURT OF JUSTICE - ONTARIO

COMMERCIAL LIST

COURT FILE NO.: No. 31-1127752
DATE: 20121207

RE: BANKRUPTCY OF ZEEV SABAN

BEFORE: Justice Newbould

COUNSEL:
Mrs. Dora Machtinger in person, for a creditor her husband Marek Machtinger

Paul H. Starkman, for the Bankrupt Zeev Saban

E N D O R S E M E N T

[ 1 ] On November 26, 2012 I dismissed an appeal by Marek Machtinger from the decision of the Registrar to grant a conditional discharge of the bankrupt Zeev Saban on certain terms.

[ 2 ] The Bankrupt asks for costs on a substantial indemnity basis on the grounds that Mr. Machtinger has made unproven allegations of fraud in affidavit material filed before me. I do not think in this case there are grounds for substantial indemnity costs as the allegations related to two matters that I directed to be heard by the Registrar. I did not make any findings that the allegations had or had not been proven.

[ 3 ] The bankrupt seeks costs on a partial indemnity basis of $11,353.88 inclusive of disbursements and HST. The fees claimed are $8,862. I note that the work itemized indicates time spent in reviewing all of the bankrupt’s material served on the appeal. This would include work on matters that I directed to be dealt with by the Registrar. I would make a deduction for this reason.

[ 4 ] Mr. Machtinger contends that too much time was spent on drafting the factum considering that the legal research was done by an agency who has charged $939.68 for that. I cannot say that too much time was spent on the factum, although again some of it dealt with matters I directed to be dealt with by the Registrar.

[ 5 ] Mr. Machtinger indicates that he is of modest means, and I appreciate that. While I take that into account, it is not a reason in itself in this case to deny all costs to the successful party. The fact that Mr. Machtinger may have thought he had grounds for an appeal is also no basis for denying costs to the successful party.

[ 6 ] Mr. Machtinger refers to the allegations of fraud and deceit he says were referred to by the Registrar. That in my view does not disentitle the bankrupt to costs of this appeal. That was dealt with by the Registrar who awarded costs of $1,500 to Mr. Machtinger for his time spent at the discharge hearing. The appeal dealt with alleged errors of the Registrar.

[ 7 ] The bankrupt has incurred substantial costs in responding to the appeal and the normal rule that costs follow the event should be followed in this case.

[ 8 ] Taking into account the factors in rule 57.01, including what Mr. Machtinger could reasonable expect to pay for the appeal if lost, I set the total fees and disbursement of the bankrupt at $6,000, inclusive of HST. This amount, less the $1,500 ordered to be paid by the Registrar by the bankrupt to Mr. Machtinger, is to be paid by Mr. Machtinger within 60 days.

Newbould J.

DATE: December 7, 2012