In a construction lien action, the defendants sought costs after the plaintiff abandoned a proposed motion for leave to bring a summary judgment motion before serving motion materials.
The court held that, despite Rule 37.09(3) not being directly engaged, s. 86 of the Construction Lien Act conferred broad discretion to award costs in lien proceedings.
The court found it was reasonably foreseeable that the responding parties would begin preparing once the motion timetable was fixed, particularly given scheduling constraints and the state of the evidentiary record.
Recovery was limited to thrown away costs, but the court added a deterrence component because the plaintiff's conduct was found tantamount to abuse of process and fruitless litigation.
Costs of $7,500 were awarded, without prejudice to a further claim at trial.
