NHM International Inc. v. F.C. Yachts Ltd. et al., (2003) 231 F.T.R. 135 (TD)

• Court: Federal Court (Canada)
• Case Date: March 28, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 231 F.T.R. 135 (TD)

NHM Intl. Inc. v. FC Yachts Ltd. (2003), 231 F.T.R. 135 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. AP.039

Admiralty Action in rem and in personam

NHM International Inc. (plaintiff) v. F.C. Yachts Ltd., the owners and all others interested in the Motor Vessel All Risks, also known as F.C. Yachts Ltd. Hull Number QFY76003K102 (defendants)

(T-1865-02; 2003 FCT 373)

Indexed As: NHM International Inc. v. F.C. Yachts Ltd. et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

March 28, 2003.

Summary:

The plaintiff NHM International Inc., arranged for F.C. Yachts Ltd. to construct a yacht. F.C. Yachts Ltd., as builder and owner of the vessel, gave to NHM International Inc., the buyer and intended ultimate owner of the vessel, a builder's mortgage, to secure the equity of NHM International Inc. in the vessel as it might stand from time to time by reason of deposit and progress payments. Construction began and NHM International made progress payments. In the view of NHM International, progress on the yacht's construction was unsatisfactory. NHM went into possession of the yacht as a mortgagee in possession and had the vessel arrested. A dispute arose over the amount of bail.

A Prothonotary of the Federal Court of Canada, Trial Division, in a decision reported 227 F.T.R. 42, set bail accordingly. An issue arose as to costs of the bail motion, with NHM seeking costs on a solicitor and client basis to reflect legal costs of $14,000 exclusive of disbursements.

A Prothonotary of the Federal Court of Canada, Trial Division, awarded lump sum costs of $9.000.00.

Practice - Topic 7427.1

Costs - Solicitor and client costs - Measure of solicitor and client costs - Lump sum - The plaintiff NHM International Inc., arranged for F.C. Yachts Ltd. to construct a yacht - When progress was unsatisfactory, NHM went into possession of the yacht as a mortgagee and had the vessel arrested - A dispute arose over bail and a prothonotary set bail at an amount just above the amount offered by NHM - F.C. Yachts had sought a much higher amount - NHM sought costs of the bail motion on a solicitor and client basis to reflect legal costs of $14,000 exclusive of disbursements - A Prothonotary of the Federal Court of Canada, Trial Division, awarded lump sum costs of $9.000 - The Prothonotary considered that F.C. Yachts had taken an extreme and extravagant position respecting quantum of bail, but had since changed solicitors - Also the motion was lengthy and there was substantial work on the part of NHM in assembling material and in being prepared to deal with the positions taken by F.C. Yachts.

Cases Noticed:

Houwelling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R.(2d) 2 (C.A.), refd to. [para. 8].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 24 W.A.C. 284; 74 B.C.L.R.(2d) 311 (C.A.), refd to. [para. 8].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 11].

Minister of National Revenue v. Hassanali Estate (1996), 197 N.R. 51 (F.C.A.), refd to. [para. 12].

Bland v. National Capital Commission, [1993] 1 F.C. 541; 151 N.R. 10 (F.C.A.), refd to. [para. 12].

Smith & Nephew Inc. et al. v. Glen Oak Inc. et al. (1996), 198 N.R. 302; 68 C.P.R. 153 (F.C.A.), refd to. [para. 13].

Kajat v. Ship Arctic Taglu (1997), 145 F.T.R. 102 (T.D.), refd to. [para. 14].

Authors and Works Noticed:

Turriff, Gordon, Towards a New World of Costs, 51 The Advocate 717, generally [para. 8].

Counsel:

David F. McEwen, for the plaintiff;

W. Gary Wharton, for the defendants.

Solicitors of Record:

McEwen, Schmitt & Co., Vancouver, British Columbia, for the plaintiff;

Bernard & Partners, Vancouver, British Columbia, for the defendants.

This motion was heard before Hargrave, Prothonotary, of the the Federal Court of Canada, Trial Division, who delivered the following decision on March 28, 2003.