Court File and Parties
COURT FILE NO.: 17-61132
DATE: 2019-03-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Titan Mortgage Capital Partners Inc.
Sharoon Gill, for the Plaintiff/Defendant by Counterclaim
Plaintiff/Defendant by Counterclaim
- and -
Hidajet Heda Zakuti and Husein Zakuti
Matthew Tubie, for the Defendants/Plaintiffs by Counterclaim
Defendants/Plaintiffs by Counterclaim
COSTS RULING
P. R. SWEENY J.
Introduction
[1] On January 29, 2019 I released my Reasons in this matter. I reduced the amount claimed on the mortgage by the plaintiff by $38,000.
[2] The parties were unable to agree on costs and I have received submissions from the plaintiff/defendant by counterclaim and defendants/plaintiffs by counterclaim.
[3] The plaintiff seeks costs of $22,851.46 on a full indemnity basis of or, alternatively, $16,756.23 representing 70 percent of its full indemnity on the basis that the amount claimed on the mortgage was reduced 30 percent.
[4] As I understand the defendants’ position, they claim costs on the basis that the plaintiff was unable to successfully recover the full amount that was paid into court to the credit of the action pending the determination of the issues. They assert the actual fees incurred indemnity are $15,195 inclusive of HST and disbursements.
[5] The plaintiff point to correspondence which indicated that the defendants and the plaintiff made an agreement on June 8, 2017 that the balance held in trust after the sale of the Mud Street property would be released to the defendants subject to $5,000 being paid to the plaintiff. In addition, the defendants would place a new $100,000 mortgage on the Jackson Street property. However, that agreement was not ultimately completed because the defendants had concern about the amount of money that had been paid out to their son. The plaintiff says that, ultimately, judgment was granted for over $100,000 and it was substantially successful. In addition, the plaintiff notes that the standard charge terms of the mortgage entitle the plaintiff to costs on a full indemnity basis which is $22,851.46.
[6] The defendants assert that an offer to settle was made for $67,000 on August 7, 2018. However, a copy of the offer was not attached to the submissions. In any event, the plaintiff recovered more than $67,000. The defendants disputed many mortgages advances some of which were ultimately accepted. In addition, they changed their position on a number of entries. They did not make an offer which was better than my judgment. They are not entitled to their costs.
[7] In the normal course, the successful party is entitled to costs. However, I have a discretion not to award costs to a successful party.
[8] In this case, I have found that the mortgagee claimed additional amounts on the mortgage which were not properly attributed to the mortgage. $18,000 of these funds were alleged to be owed to a third party, which was related to the plaintiff corporation. The plaintiff is a corporation which has extensive experience in the process of lending funds. This litigation would not likely have occurred if the plaintiff had taken appropriate steps to properly document the amounts that were advanced on the mortgage. By failing to do so, it created a situation where it was not clear that all the payment were authorized by the mortgagors. It also improperly added funds to the mortgage for rent owed to a third party
[9] In the circumstances, I exercise my discretion to refuse to award costs to the plaintiff for the claim or counterclaim even though it was successful in recovering money on the mortgage.
[10] In the result, there is no order as to costs of the claim and counterclaim. The parties shall bear their own cost.
Sweeny J.
Released: March 4, 2019
COURT FILE NO.: 17-61132
DATE: 2019-04-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Titan Mortgage Capital Partners Inc.
Plaintiff/Defendant by Counterclaim
- and –
Hidajet Heda Zakuti and Husein Zakuti
Defendants/Plaintiffs by Counterclaim
Costs Ruling
PRS:mw
Released: March 4, 2019