Court File and Parties
COURT FILE NO.: CV-14-511191 DATE: 20170718 ONTARIO SUPERIOR COURT OF JUSTICE
APPLICATION under the Partition Act, R.S.O. 1990, c. P.4
BETWEEN:
LAURA MAMMONE, ANTONIO MAMMONE and DANIELE MAMMONE, ESTATE TRUSTEES of the ESTATE OF FRANK MAMMONE Applicants – and – EMILIO MAMMONE and DENSITY GARDEN ENTERPRISES INC. Respondents
Counsel: Alastair McNish for the Applicants Arvid Shahmiry for the Respondents
HEARD: In writing
PERELL, J.
Reasons for Decision - Costs
[1] In a decision that was upheld by the Court of Appeal, Justice Dow made an Order under the Partition Act, R.S.O. 1990, c. P.4., for the sale of two properties. See Mammone Estate v. Mammone, 2016 ONSC 2681, aff’d 2017 ONCA 18. Justice Dow’s Order required the parties to co-operate in selling the two properties.
[2] The parties did not co-operate before Justice Dow’s Order, and they did not co-operate after the Order or after the appeal.
[3] The Applicants, the Estate of Frank Mammone and the late Mr. Mammone’s adult children, Laura, Antonio, and Daniele, as estate trustees, brought a motion to vary Justice Dow’s Order to the effect that the Respondents’ co-operation in the sale of the properties be eliminated leaving the Applicants with the unilateral right to control the sale of the properties. The Respondents, Emilio Mammone (the late Frank Mammone’s brother and the uncle of Laura, Antonio and Daniele) and Density Garden Enterprises Inc., a corporation owned 50-50 by Emilio and Frank’s Estate, brought a cross-motion to vary the Order of Justice Dow. They sought an order that the Estate’s interest in both properties be sold to Emilio so that he would become the sole owner of the properties.
[4] I concluded that neither the motion nor the cross-motion should succeed. See Mammone Estate v. Mammone, 2017 ONSC 3403.
[5] Justice Dow’s Order was not working and I concluded that the Order needed to be revised to bring closure to this family dispute in a way that was fair to both sides. I held that because the parties would not co-operate, more expensive direct court intervention was required. I varied Justice Dow’s Order by deleting paragraph 2 and substituting a different protocol for the sale of the properties.
[6] The Applicants now seek substantial indemnity costs of $12,738.60, all inclusive of fees, disbursements, and applicable taxes, payable forthwith.
[7] The Respondents seek substantial indemnity costs of $9,608.37, all inclusive of fees, disbursements and applicable taxes, payable forthwith. By their costs submissions, the Respondents also seek additional relief and a further variance of Justice Dow’s and my Order.
[8] I shall not deal with the Respondents’ request for additional relief, which I cannot properly address as a matter of settling costs. If the Respondents wish further relief, they should bring the appropriate motion as they may be advised.
[9] As for costs, success on the motion and cross-motion was divided and neither side deserves an award for their failure to co-operate and to come to a sensible and fair resolution of what is a family dispute. This is an appropriate case for having both sides bear their own costs for the proceedings to date. Accordingly, I make no order as to costs.
[10] I say nothing about who should receive costs should it be necessary for the court to be engaged on this matter again.
Perell, J. Released: July 18, 2017
Court File and Parties (Repeated Header)
COURT FILE NO.: CV-14-511191 DATE: 20170718 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LAURA MAMMONE, ANTONIO MAMMONE and DANIELE MAMMONE, ESTATE TRUSTEES of the ESTATE OF FRANK MAMMONE Applicants – and – EMILIO MAMMONE and DENSITY GARDEN ENTERPRISES INC. Respondents
REASONS FOR DECISION – COSTS