Court File and Parties
COURT FILE NO.: CV-17-3149 DATE: 2019-01-23 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rajesh Kumar Pall and Poonam Pall, Plaintiffs and Huma Naz Chughtai, Muhammad Yousaf Chughtai and Sam McDadi Real Estate Inc., Brokerage, Defendants
BEFORE: Fragomeni J.
COUNSEL: Christina Bowman, for the Plaintiffs Joan Kasozi, for the Defendants
HEARD: In Writing
C O S T S E N D O R S E M E N T
[1] The plaintiffs brought a motion for an order requiring the defendants to pay $183,575.68, plus 25 percent for costs, into court. The plaintiffs were also seeking a vesting order with respect to the property municipally known as 26 Merrittonia Street in Brampton. The plaintiffs filed a Caution with respect to the Merrittonia property. The closing date of the sale of the Merrittonia property was scheduled for November 30, 2018 so the defendants moved in their cross-motion for the following relief:
(a) An Order under Sections 159 and 160 of the Land Titles Act, 1990 discharging the Caution bearing the registration number PR3408328 that was registered against the defendants’ residential property known municipally as 26 Merrittonia Street (the “Merrittonia Residential Property”);
(b) A declaration that the plaintiffs do not have any interest in the Merrittonia Residential Property;
(c) An Order granting leave to the defendants, Huma Naz Chughtai and Muhammad Yousaf Chughtai, to issue a Third Party Claim as against Save Max Real Estate Inc., Nitin Malik and Raman Dua.
(d) An Order granting leave to issue the third-party claim attached as Schedule “A”.
[2] I will not review the facts in these costs reasons as I set out the factual overview in my endorsement dated November 29, 2018.
[3] On November 29, 2018 I made the following order:
The plaintiffs’ Motion is dismissed in its entirety.
An Order under Sections 159 and 160 of the Land Titles Act, 1990 discharging the Caution bearing the registration number PR3408328 that was registered against the defendants’ residential property known municipally as 26 Merrittonia Street (the “Merrittonia Residential Property”);
A Declaration that the plaintiffs do not have any interest in the Merrittonia Residential Property;
An Order granting leave to the defendants, Huma Naz Chughtai and Muhammad Yousaf Chughtai, to issue a Third Party Claim as against Save Max Real Estate Inc., Nitin Malik and Raman Dua.
[4] The defendants now seek costs of the motion and set out in the following amounts:
Partial Indemnity $12,260.72
Substantial Indemnity $16,312.00
Actual Indemnity $20,363.16
[5] In support of their position the defendants point to the following factors:
− they were completely successful at the motion on all issues
− the plaintiffs’ motion and improper registration of a caution against the Merrittonia property were unreasonable and caused unnecessary costs to be incurred by the defendants just days before the sale of the Merrittonia property was scheduled to close
− the plaintiffs were seeking execution before judgment, a position that is untenable in law
− the court found that the plaintiffs did not have an interest in the Merrittonia property and ordered that the caution be deleted from title
− the plaintiffs should have consented to the issuance of a third party claim
the plaintiffs made unsubstantiated allegations against the defendants, alleging that they had fraudulently transferred the Merrittonia property in order to be judgment proof. As such, the costs in favour of the defendants should be elevated.
[6] I have reviewed and considered the costs submissions of the plaintiffs. I am satisfied in all of the circumstances that the defendants are entitled to costs.
[7] I am also satisfied that the defendants are entitled to costs on a partial indemnity basis.
[8] There is nothing in the evidentiary record before me relating to the conduct of the plaintiffs that supports an order fixing costs on a substantial indemnity basis or an actual indemnity basis.
[9] I have reviewed the costs outline set out by the defendants. It is difficult to understand why it was necessary to use the services of five lawyers, a law student and a law clerk for a total of 59.2 hours of work expended on this motion.
[10] I am prepared to fix the costs of this motion in the all-inclusive sum of $8,000.00.
[11] Order to issue that the plaintiffs pay to the defendants their costs fixed on a partial indemnity basis in the all-inclusive sum of $8,000.00.
FRAGOMENI J.
DATE: January 23, 2019
COURT FILE NO.: CV-17-3149-00 DATE: 2019 01 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rajesh Kumar Pall and Poonam Pall, Plaintiffs and Huma Naz Chughtai, Muhammad Yousaf Chughtai and Sam McDadi Real Estate Inc., Brokerage
COUNSEL: Christina Bowman, for the Plaintiffs Joan Kasozi, for the Defendants
COSTS ENDORSEMENT
FRAGOMENI J.
DATE: January 23, 2019