Supreme Court

Hardisty v. 851791 NWT Ltd, et al, 2005 NWTSC 3                   Date: 2005 01 05
                          Docket:


                  MEMORANDUM OF JUDGMENT

This memorandum addresses the question of costs.

The two defendants, 851791 N.W.T. Ltd. and Carmacks Construction Inc., each sought contribution and indemnity from the other.  They had both contributed to a settlement of the plaintiff’s claim.  In a judgment delivered on October 6, 2004, I found in favour of 851791 N.W.T. Ltd. and awarded it judgment of  $165, 542.71 (see [2004] N.W.T.J. No. 58).The successful defendant now seeks its costs, on a party-and-party basis, of the entire  proceedings.  The unsuccessful defendant seeks to limit the costs to the trial of the issue before me.

In a situation such as this, it is common for a defendant, who has successfully claimed over against another defendant or a third party, to recover its costs of the entire proceeding.  I  see no good reason why that general rule should not apply here.  The proceedings vis-à-vis the  plaintiff were limited and therefore the costs claimed are not unreasonable.  In addition, those proceedings undoubtedly made the action before me much more direct and uncomplicated.

Carmacks takes issue with the disbursement for an expert’s report.  If I were not inclined to award costs for the entire proceeding I may have considered that expense as an unrecoverable item.  However, having regard to my conclusion on the main question, I allow that disbursement.

The successful defendant has submitted a proposed Bill of Costs.  It is based on the appropriate column.  It has been suggested that a fixed amount may be more appropriate so as to avoid further disputes on a taxation.  I agree.

Having reviewed what was submitted, I award costs to 851791 N.W.T. Ltd. in the fixed sum of $20,000.00 (inclusive of all disbursements and the costs of this application but exclusive of G.S.T.).





                   J.Z. Vertes
                      J.S.C.
Dated at Yellowknife, NT this
5th day of January, 2005.

Counsel for 851791 N.W.T. Ltd.:       Gary J. Draper
Counsel for Carmacks Construction Inc.:  Edward J. Boomer