CITATION: Agrette, et al. v. Sacco, et al., 2016 ONSC 1541
COURT FILE NO.: 54021/12
DATE: 2016/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL AGRETTE and ILANA AGRETTE
Plaintiffs
- and -
FREDRICK ANDREW SACCO and SACCO HOMES INC.
Defendants
COUNSEL:
M.S. Stratton, for the Plaintiffs
P.R. Heath, for the Defendants
BEFORE: The Honourable Mr. Justice J.R. Henderson
COSTS ENDORSEMENT
[1] The plaintiffs sued the defendant Fredrick Andrew Sacco (“Sacco”) and the defendant Sacco Homes Inc. (“SHI”) for the return of a deposit in the amount of $150,000.00 that the plaintiffs had paid toward the construction of a residential home at 6651 Flora Court, Niagara Falls, Ontario (“the Flora Court property”).
[2] After a trial that took place over parts of five days, the plaintiffs were granted judgment against Sacco in the amount of $156,634.98, which represented the deposit plus the cost of some items that had been installed in the Flora Court property.
[3] As the successful parties, the plaintiffs are entitled to their costs of this proceeding.
[4] Regarding the scale of costs, the plaintiffs rely upon a written offer to settle dated July 9, 2015, whereby the plaintiffs offered to accept the sum of $150,000.00, plus partial indemnity costs, in full satisfaction of their claim. In my view, this offer does not engage the provisions of Rule 49.10 because the offer contemplates payment by both defendants. In my Reasons for Judgment I allowed the plaintiffs’ claim against Sacco, but the claim against SHI was dismissed as I found that SHI was not a party to the contract.
[5] Therefore, in this costs endorsement, I find that costs should be awarded to the plaintiffs on a partial indemnity scale, payable by Sacco.
[6] Regarding quantum, I find that the trial took place over three full days and two half days. I find that both sides presented the evidence in a fair and efficient manner, and that the parties co-operated on the introduction of evidence on the uncontested matters. In fact, there was little dispute as to the facts. The dispute at trial essentially revolved around the application of the law of forfeiture. Thus, I find that the factual matrix at trial was not complex, but that the parties both invested a significant amount of time in their legal arguments.
[7] I will allow a counsel fee for trial on a partial indemnity scale in the amount of $10,500.00. I will allow a further fee for all preparation for trial, including all examinations and all production of documents in the amount of a further $12,000.00. Therefore, the total fee allowed will be $22,500.00 plus 13% HST, for a total of $25,425.00.
[8] I accept the disbursements claimed in the amount of $2,880.86 plus HST on certain disbursements in the amount of $280.29, for a total of $3,161.15.
[9] Therefore, it is ordered and adjudged that the defendant Sacco pay to the plaintiffs their costs fixed at $28,586.15, payable within 30 days.
Henderson J.
Released: March 3, 2016
CITATION: Agrette, et al. v. Sacco, et al., 2016 ONSC 1541
COURT FILE NO.: 54021/12
DATE: 2016/03/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL AGRETTE and ILANA AGRETTE
Plaintiffs
- and -
FREDRICK ANDREW SACCO and SACCO HOMES INC.
Defendants
COSTS ENDORSEMENT
Henderson J.
Released: March 3, 2016