Foothills Decorating Ltd. v. Amigo Construction Ltd. et al., (2000) 285 A.R. 28 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 28, 2000
• Citations: (2000), 285 A.R. 28 (QB)

Foothills Decorating v. Amigo Constr. (2000), 285 A.R. 28 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. DE.079

Foothills Decorating Ltd. (plaintiff) v. Amigo Construction Ltd., Daya Wanti Khosla and Munish Khosla (defendants)

(Action No. 9601-14935)

Indexed As: Foothills Decorating Ltd. v. Amigo Construction Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

November 28, 2000.

Summary:

The plaintiff contractor sought to enforce a builders lien, naming the general contractor and the registered owner of the residential property as defendants. The plaintiff recovered judgment for $5,873.12 plus interest. The plaintiff had previously made an offer to settle the action for $5,333.67. At issue in this application to fix costs was: (1) whether double column costs should be awarded; (2) how the costs of a proceeding before the Court of Appeal should be dealt with; and (3) whether any costs award should be enforceable against the registered owner of the property.

The Alberta Court of Queen's Bench held that double costs should be awarded except for costs in the Court of Appeal proceeding. The Court of Appeal costs were to be added to the plaintiff's costs in the cause using single Column 1. The registered owner of the property was jointly and severally liable with the general contractor for the payment of the judgment, interest and costs.

Mechanics' Liens - Topic 8800

Costs - General - [See first, second, third and fourth Practice - Topic 7243 ].

Practice - Topic 7111.2

Costs - Party and party costs - Special orders - Increase in scale of costs - Effect of settlement offers - [See all Practice - Topic 7243 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff in a builder's lien action recovered judgment for $5,873.12 - It had previously made an offer to settle for $5,333.67 - Pursuant to rule 174(2) the defendants (the general contractor and the registered owner of the property) had to pay double costs after the date of the offer unless there was a special reason for the disallowance of such double costs - The potential costs award, even using single column costs, totalled more than the judgment awarded - The Alberta Court of Queen's Bench held that double costs should be awarded.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff in a builder's lien action recovered judgment for $5,873.12 - It had previously made an offer to settle for $5,333.67 - Pursuant to rule 174(2) the defendants (the general contractor and the registered owner of the property) had to pay double costs after the date of the offer unless there was a special reason for the disallowance of such double costs - The defendants argued that the Builder's Lien Act created a special circumstance and that the owner should not be found liable for an amount, including costs, that would exceed the lien fund calculated using the plaintiff's contract amounts - The Alberta Court of Queen's Bench rejected the defendants' argument - As no minor lien fund was created by either the general contractor or the owner with respect to the plaintiff's subcontract, the full amount of the judgment and costs were available out of the major lien fund - Also, s. 54 of the Builder's Lien Act provided the court with discretion to order the owner or contractor to pay all of the costs of the proceedings where there had been a failure to comply with the Act - See paragraphs 19 to 24.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff sought to enforce a builder's lien, naming the general contractor (Amigo Construction Ltd.) and the registered owner of the property (Khosla) as defendants - Amigo was apparently inactive - The plaintiff purported to contract with Amigo, but it had mainly dealt with Khosla's father, who lived in the constructed residence - The plaintiff recovered judgment for $5,873.12 - It had previously made an offer to settle for $5,333.67 - Pursuant to rule 174(2) the defendants had to pay double costs after the date of the offer unless there was a special reason for the disallowance of such double costs - The defendants submitted that a special reason for not paying double costs was that because of Khosla's minimum involvement in the construction of the residence, it would be unfair to make him liable for the entire cost of the proceeding - With respect to Amigo's capacity to pay any obligation found to be owing by it, the defendants submitted that the plaintiff knew that it was dealing with a limited company - The Alberta Court of Queen's Bench rejected the defendants' argument - See paragraphs 25 to 26.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff in a builder's lien action recovered judgment for $5,873.12 - It had previously made an offer to settle for $5,333.67 - Pursuant to rule 174(2) the defendants (the general contractor and the registered owner of the property) had to pay double costs after the date of the offer unless there was a special reason for the disallowance of such double costs - The defendants stressed as a special reason for not doubling costs against them the fact that the plaintiff only recovered approximately one-half of its original claim, placing it within the jurisdiction of civil suits in the Provincial Court where the costs tariff was lower than in the Queen's Bench (rule 605(7)) - The Alberta Court of Queen's Bench held that because jurisdiction in a builder's lien action was limited to the Court of Queen's Bench, rule 605(8) applied and the defendants were not entitled to limit the plaintiff's taxable costs pursuant to rule 605(7) - The amount of the plaintiff's recovery therefore did not constitute a special reason for denying the plaintiff's recovery of double costs - See paragraphs 27 to 29.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff in a builder's lien action recovered judgment for $5,873.12 - It had previously made an offer to settle for $5,333.67 - At issue was whether double costs should be payable by the defendants after the date of the offer pursuant to rule 174(2) - Also at issue was how costs of proceedings in the Court of Appeal on an appeal from an order of Sullivan, J., should be dealt with -The Alberta Court of Queen's Bench held that double costs should be awarded except for costs in the Court of Appeal - The plaintiff's offer of settlement was not renewed after Sullivan, J.'s judgment and before the appeal judgment - There was therefore no offer of compromise capable of acceptance by the defendants after Sullivan, J.'s order and prior to the appeal hearing - See paragraphs 32 to 52.

Cases Noticed:

Wenden v. Trikha et al. (1992), 124 A.R. 1; 1 Alta. L.R.(3d) 283 (Q.B.), refd to. [para. 12].

Laube v. Juchli (1998), 228 A.R. 81; 188 W.A.C. 81 (C.A.), refd to. [para. 14].

Purich v. Purich (1999), 248 A.R. 145 (Q.B.), refd to. [para. 15].

Royal Air Ltd. v. Sterling Carpet Holdings Ltd. (1989), 98 A.R. 60; 34 C.L.R. 243 (Q.B.), refd to. [para. 20].

Davis v. Caproco Corrosion Prevention Ltd. (1987), 76 A.R. 314 (C.A.), refd to. [para. 39].

Rahmath v. Louisiana Land & Exploration Co. (1989), 104 A.R. 391 (C.A.), refd to. [para. 40].

Brown Estate v. Young (1990), 107 A.R. 134 (C.A.), refd to. [para. 44].

Whittle v. Davies (1987), 104 A.R. 336; 45 D.L.R.(4th) 331; 55 Alta. L.R.(2d) 391 (C.A.), refd to. [para. 44].

Citadel General Life Assurance Co. et al. v. Lloyd's Bank of Canada et al. (1996), 196 A.R. 146; 141 W.A.C. 146 (C.A.), refd to. [para. 45].

Labbee et al. v. Peters et al. (2000), 261 A.R. 141; 225 W.A.C. 141 (C.A.), refd to. [para. 46].

Statutes Noticed:

Builder's Lien Act, R.S.A. 1980, c. B-12, sect. 16.4 [para. 19]; sect. 54 [para. 23].

Rules of Court (Alta.), rule 174(2) [para. 11].

Counsel:

E. Jane Sidnell, for the plaintiff;

Gary Kirk, for the defendants.

This matter was heard before Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on November 28, 2000.