Court File and Parties

COURT FILE NO.: CV-21-00662401-0000 DATE: 20220411 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE SHUK-HA NG Applicant

• and - ERIC TSZ KUI TANG a.k.a. ERIC TANG Respondent

Counsel: Kelli Preston for the Applicant Lawrence S. Wong for the Respondent

Application under the Partition Act, R.S.O 1990, c. P.4

HEARD: In writing

PERELL, J.

Reasons for Decision - Costs

[1] In 2001, Michelle Ng and Eric Tang purchased a condominium unit, 5 Everson Drive. In 2021, they both applied under the Partition Act to end their joint 50:50 co-ownership. In the result:

a. I granted a partition and sale order.

b. I dismissed Michelle’s unjust enrichment claims for an unequal distribution of the proceeds of sale.

c. I dismissed Eric’s claims for occupation rent.

d. I ordered that if: (a) Eric pays to discharge the mortgage he placed on 5 Everson Dr.; and (b) Eric pays to Michelle one half of Michelle’s after-purchase contribution, then 5 Everson Dr. should be sold as an unencumbered property pursuant to the Partition Act, with the net proceeds of sale divided 50:50.

e. I ordered that if within 90 days: (a) Eric fails to discharge the second mortgage on 5 Everson Dr.; and (b) if Eric fails to pay one half of Michelle’s after-purchase contribution, then 5 Everson Dr. should be sold pursuant to the Partition Act with: (a) Michelle receiving 50% of the gross proceeds of sale; (b) Michelle receiving one half of her after-purchase contribution from the proceeds of sale; and (c) Eric receiving the balance of the proceeds of sale.

f. I directed that if the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Michelle’s submissions within twenty days of the release of these Reasons for Decision followed by Eric’s submissions within a further twenty days. Ng v. Tang, 2022 ONSC 1448

[2] The outcome was very much a divided success, and in accordance with the exercise of my discretion for costs pursuant to rule 57.01 of the Rules of Civil Procedure, I would have made no Order as to costs, but I requested costs submissions to be satisfied that a no costs order was the appropriate order in all the circumstances.

[3] Claiming victory and relying on an offer to settle that was made the day before the hearing, Michelle sought costs of: (a) $47,107.15 all inclusive, on a substantial indemnity basis; or (b) or, $38,840.80, all inclusive, on a partial indemnity basis to the date of her offer ($29,994.13) plus costs on a substantial indemnity basis from the offer’s date ($8,846.67).

[4] Claiming victory, Eric sought costs of $33,521.94, all inclusive, on a partial indemnity basis.

[5] I am not persuaded by either party’s submissions that there should be an order for costs in the immediate case. There was divided success. There was no conduct warranting a punitive costs award. The Offer to Settle was not timely, and the offer was not more favourable that the court’s decision.

[6] Accordingly, I dismiss both parties’ claim for costs.

Perell, J.

Released: April 11, 2022