Court File and Parties
COURT FILE NO.: 57594/17
DATE: 2018/11/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rohit Rangwani, Alok Nagpal, Dashpal Singh Takhar, Manish Gupta, Rohan Dhand, and Sandeep Chhabriya
Applicants
– and –
Pinewoods Home (Niagara) Ltd.
Respondent
A. Vishwanth Nrupathunga, for the Applicants
P. Mahoney and A. Mannell, for the Respondent
THE HONOURABLE JUSTICE J. R. HENDERSON
COSTS ENDORSEMENT
[1] On the return of this application on September 14, 2018, I heard oral argument regarding the liability issue in this dispute. The respondent (“Pinewood”) successfully submitted that it was not liable to the applicants as there were no valid binding contracts of purchase and sale. Therefore, the application was dismissed. My written reasons were released on October 1, 2018.
[2] Pinewood now requests its costs of the application on a partial indemnity basis in the amount of approximately $42,000, inclusive of HST and disbursements. The applicants submit that there should be no costs awarded.
[3] I find that Pinewood was clearly the successful party. Therefore, Pinewood is prima facie entitled to its costs of the application. I do not agree with the applicants’ submission that there should be no costs, in part, because the application was not vexatious. I accept that the application was not vexatious, but that does not detract from the fact that the application was ultimately unsuccessful. Generally, a successful party is entitled to costs.
[4] Further, I accept that costs should be awarded on a partial indemnity scale in this case. There is no conduct by any of the litigants that would justify a different scale of costs, and there were no offers to settle that automatically engage the provisions of Rule 49.
[5] Regarding the quantum of costs, I find that the amount requested by Pinewood is excessive given the principles expressed in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291. In Boucher, the court held that the amount of costs should not be fixed by a mere mathematical calculation based on the time spent by successful counsel. Rather, the objective of a costs award is to fix an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding.
[6] In the present proceeding, I find that the issues raised in the application were modestly complex and that the issues were important to the parties. Further, I find that the process of making oral argument regarding the liability issue in the application was an efficient way of handling this dispute.
[7] Each of the applicants may argue that their respective issues with Pinewood were not complex as each applicant simply asserted that he had a valid contract with Pinewood. However, I accept that the collective effect of six separate claims against Pinewood in the total amount of $1,500,000 was significant.
[8] Regarding the legal services that were required on behalf of Pinewood, I find that Pinewood’s counsel was required to review and respond to the application record, to research the law regarding contracts and condominium development, to draft responding material, to conduct and attend at cross-examinations, to draft a factum, and to attend at and argue the liability aspect of the application.
[9] In consideration of these factors, I find that a fair and reasonable amount for partial indemnity costs is $17,000, plus HST and disbursements. HST is calculated at $2,210. The amount of disbursements, inclusive of HST, is $3,176.23.
[10] Accordingly, it is ordered that the applicants pay partial indemnity costs to Pinewood fixed at the amount of $22,386.23, all inclusive, payable within 30 days.
J. R. Henderson J.
Released: November 5, 2018
COURT FILE NO.: 57594/17
DATE: 2018/11/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rohit Rangwani, Alok Nagpal, Dashpal Singh Takhar, Manish Gupta, Rohan Dhand, and Sandeep Chhabriya
Applicants
– and –
Pinewoods Home (Niagara) Ltd.
Respondent
COSTS ENDORSEMENT
J. R. Henderson J.
Released: November 5, 2018