SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-03-2932-1
DATE: 20140826
RE: Elio Pietro Malandra, Applicant
AND
Victoria Mary Malandra, Respondent
BEFORE: J. Mackinnon J.
COUNSEL:
Gil D. Rumstein, Counsel for the Applicant
J. Alison Campbell, Counsel for the Respondent
HEARD: by written submissions
Costs ENDORSEMENT
[1] The applicant seeks costs of this four day trial fixed in the amount of $23,055.37. His solicitor client account totals $30,230.37 inclusive. The basis of the amount claimed is partial costs to the date of his first Offer to Settle and full costs thereafter. The respondent submits success was divided and each party should bear his or her own costs.
[2] In my view the applicant was clearly the successful party in the case. The primary issue at trial was whether the net family property should be equalized or divided unequally in the respondent’s favour. The applicant succeeded in obtaining the equalization payment in the same amount as he had offered to settle for in May 2013. Moreover the respondent never made an offer that stipulated the amount of money she was seeking by way of unequal division. The first time the court heard the respondent's precise position stated numerically was during closing submissions when counsel advised her client’s position was that the proceeds of sale of the matrimonial home should be divided equally such that the respondent would not have to pay the equalization payment of $34,300 to the applicant. The applicant says this is the first time he was ever told the dollar at stake from the respondent’s point of view.
[3] The first offer made by the applicant did not address the primary issue of equal or unequal division of net family property. Her second offer, delivered two days before trial, proposed that she would transfer the matrimonial home to the applicant in return for full releases from existing encumbrances by the creditors, and payment of $230,000 to her. In order to reflect the equalization payment she owed him, this offer would have been premised on the matrimonial home being worth about $775,000 (without considering the cost of real estate commission if sold) whereas the appraised value was $730,000. The offer was also unrealistic in that the applicant had no ability to meet its terms. The respondent must have known this.
[4] The applicant made two offers to settle. The first is dated May 27, 2013 and called for an equalization payment to him of $34,300 plus pre-judgment interest, and the sale of the matrimonial home at any price received equal to or above the appraised value of $730,000. This offer remained open at commencement of trial. His second offer was essentially the same but also required a change of listing agent to a new real estate agent.
[5] The respondent maintains success was divided at trial. She claims success with regard to the terms of sale of the home. In support of this position she points out the court did not require the house to be sold at $730,000. In addition the applicant asked for an order dispensing with her consent to the sale, which was not granted. The applicant did not pursue the request for the change in the real estate agent at trial. In my view, the reality is that the applicant did not achieve everything he sought in relation to the terms of sale, but that does not equate to the respondent having been successful on the issue. Her position was that the house should be marketed in a way to achieve the highest possible price despite the appraised value being much lower than what she hoped to attain. Despite the testimony of the listing agent that the asking price should be reduced to $769,500 immediately, she did not agree to that. The final order made was to reduce the asking price to $759,500 as of July 31, that any offer at or over $725,000 must be countered or accepted, and provided for referral of disagreements to a Master.
[6] Overall the terms of sale ordered more closely aligned with applicant’s position than with the respondent’s. I find the applicant partially successful on the issue of the terms of sale of the home. I disagree that his partial success translates into success by the respondent.
[7] This is not a case where the applicant’s offers mandate an award of full recovery costs. That said his offers were very reasonable and ought to have been acceptable to the respondent. She would have been farther ahead had she accepted either one of them. The amount of costs claimed is very fair and in my view ought not to be reduced on account of his only partial success on the terms of sale of the home and failure to achieve pre-judgment interest on the equalization payment. Rather the lack of proportionality reflected by the respondent’s decision to pursue a four day trial over the amount of $34,300, without ever having made a cogent offer to settle that claim leads me to award costs to the applicant as asked in the amount of $23,055.37.
J. Mackinnon J.
Date: August 26, 2014
COURT FILE NO.: FC-03-2932-1
DATE: 20140826
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Elio Pietro Malandra, Applicant
AND
Victoria Mary Malandra, Respondent
BEFORE: J. Mackinnon J.
COUNSEL:
Gil D. Rumstein, Counsel for the Applicant
J. Alison Campbell, Counsel for the Respondent
COSTS ENDORSEMENT
J. Mackinnon J.
Released: August 26, 2014