Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation:  Lienaux v. 2301072 Nova Scotia Ltd., 2007 NSCA 66

Date: 20070530

Docket: CA 271137

Registry: Halifax

Between:

Charles D. Lienaux and Karen L. Turner-Lienaux

Appellants

v.

2301072 Nova Scotia Limited and Marven C. Block, Q.C.

                                                                                                          Respondents

                                                          - and -

                                         The Toronto-Dominion Bank

                                                                                                              Intervenor

Judge:                   The Honourable Justice Thomas Cromwell

Appeal Heard:      May 16, 2007                 

Subject:                 Security for costs – security ordered against defendants who were applicants on interlocutory application

Summary:             The appellants were defendants in protracted litigation in relation to promissory notes and collateral mortgages assigned to the respondent.  The appellants wished to seek leave to amend their defence.  They had previously brought an application in which roughly 100 proposed amendments to their defence had been refused and solicitor and client costs had been ordered against them.  Their appeal from that order was largely unsuccessful and costs of the appeal were ordered against them.  These two costs orders, totalling about $35,000, were unpaid.  The respondent, the plaintiff in the action, applied for security for costs.  The chambers judge ordered that security be posted and prior costs awards paid before the appellants could bring further interlocutory applications.  The appellants sought leave to appeal.

Issues:                   Did the judge err in ordering the appellants to post security for costs?

Result:                  Leave to appeal granted but appeal dismissed.  The judge had discretion to order security as the appellants, by virtue of being the applicants on an interlocutory application, were “plaintiffs” within the meaning of both the Judicature Act, R.S.N.S. 1989, c. 240 and the Civil Procedure Rules.  The judge did not err in refusing to determine whether the respondent lacked standing to sue or in imposing an order for security for costs in relation to the appellants’ attempts to amend their pleading.