Court File and Parties

COURT FILE NO.: CV-14-507227

DATE: 20190802

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KWEI HWA SENG and SAU KIN TSE, Plaintiffs

AND:

DARA SENG aka DARA TAN LING SENG aka DARA TAN LING SENG ZHANG, Defendant

BEFORE: A.J. O’Marra

COUNSEL: Lawrence S. Wong, for the Plaintiff

Ford W. Wong, for the Defendant

HEARD: July 17, November 5-6, December 10, 2018, February 6, March 8, and March 25, 2019

COSTS ENDORSEMENT

[1] In a dispute over the parties’ interest in a residential condominium property, 3181 Bayview Avenue, Suite 513, Toronto, Ontario summary judgment was granted in favour of the plaintiffs’ claim to remove the defendant’s name from title of the property. The defendant’s crossclaim in which she asserted the existence of a disguised mortgage and right of redemption with respect to the property in which the plaintiffs and defendant held title jointly was dismissed. Reasons for Judgment can be found at Seng v. Seng, 2019 ONSC 3803.

[2] The parties were invited to make submissions with respect to costs together with their respective costs outline and bill of costs if an agreement could not be reached as between themselves. I have received the costs submissions of the plaintiffs and the defendant counsel with the plaintiffs’ costs outline and bill of costs, but not from the defendant.

[3] The plaintiffs seek full indemnity costs in the amount of $200,000.00, inclusive of HST and disbursements as the successful party. In the alternative, the plaintiffs seek “$150,000.00, which is 10% over the partial indemnity costs of $133,348.00 . . .”.

[4] The defendant submits that given the court’s findings with respect to lack of credibility of plaintiff, Kwei Seng and defendant, Dara Seng as referenced in paras. 42-50 of the judgment that the parties should bear their own costs. In the alternative, the court should award a nominal amount on a partial indemnity basis.

[5] Rule 57.01 of the Rules of Civil Procedure states that the court in exercising its discretion under s. 131 of the Courts of Justice Act in the awarding of costs may consider in addition to the result and any offer to settle, such factors as: the complexity of the proceedings; the importance of the issues; the conduct of any party that tended to shorten or to lengthen unnecessarily the proceedings; whether any step in the proceedings was improper, vexatious or unnecessary, and the amount of costs that any unsuccessful party could reasonably expect to pay in the result.

[6] The plaintiffs contend that the issues brought by them were not complex in that their claim was based on breach of contract, whereas it was only as a result of the defendant’s counterclaims that alleged disguised mortgage with right of redemption, application of the Statute of Frauds, limitation periods, fraud and an initial claim for punitive damages in the amount of $1,000,000.00 against her parents that it became a complex and protracted[^1].

[7] The plaintiffs claim that the defendant’s actions were improper, vexatious or unnecessary because of her “groundless and unsupported allegations of fraud” against them. Further, the plaintiffs assert the defendant caused delay in the proceedings of six months (February to July 2018) when she provided her notice of cross-motion and materials only two weeks prior to the scheduled hearing of the plaintiffs’ motion on an agreed timetable.

[8] The defendant notes in response that the amendments to her pleadings arose because of the plaintiff, Kwei Seng having given evidence on discovery which she believed supported a claim of duress in her acceptance the return of $91,000 to relinquish her interest in the property and a right of redemption under a “disguised mortgage” arrangement with her father. Further, the plaintiff, Kwei Seng’s failure to mention the loan agreement entered into at the time of the property purchase, which was at the center of the arrangement between them with respect to the property at issue necessitated amendments to pleadings.

[9] The defendant notes that the plaintiffs agreed to the adjournment of the original motion date. In any event, the summary judgment motion and cross motion required five more hearing days to complete than originally scheduled.

[10] In my view, it was a complex matter that involved genuine issues for determination. In the context of the proceedings I do not find any of the steps or conduct by either party, even though antagonistic, rose to the level of being characterized as improper, vexatious or unnecessary to warrant punitive costs. Further, there was no improper delay. Where there were costs thrown away the court ordered costs, which were paid by the defendant.

[11] In the result, there was no divided success which would warrant an order of no costs as suggested by the defendant. Conversely, there is no basis to award substantial, let alone full indemnity costs, as requested by the plaintiffs.

[12] The issue to consider in this matter is what an unsuccessful party would expect to pay. The defendant did not provide a cost outline or bill of costs to assist in the assessment of this matter. Counsel for the defendant challenged the plaintiffs’ counsel hourly rate of $450/hour and a separate “counsel rate” of $550/hour for 53.3 hours for hearing appearances. He suggested a senior counsel rate of $350.00, based on the rate the Law Society would pay to retain an outside counsel. Counsel for the plaintiffs has practiced for more than 32 years and an overall hourly rate of $450.00 is commensurate with such experience.

[13] Applying the same hourly rate throughout for senior counsel at $450.00 per hour, less costs ($5,000.00) already paid by the defendant for costs thrown away due to her first amended pleadings, costs in this matter shall be awarded on a partial indemnity scale in amount of $107,726.00 plus disbursements of $3,182.00, for a total of $110,908.00, payable forthwith by the defendant.

A.J. O’Marra

Date: August 2, 2019

[^1]: In a subsequent amendment to the crossclaim the defendant reduced the claim for punitive damages to $1.00.