Supreme Court

Decision Information

Decision Content

 

                                     IN THE SUPREME COURT OF NOVA SCOTIA

          Citation: Dexter Construction v. Nova Scotia (Attorney General), 2004 NSSC 267

 

                                                                                                                                  Date: 20041220

                                                                                                                           Docket: SH 165314

                                                                                                                              Registry:  Halifax

 

Between:

                                              Dexter Construction Company Limited

                                                                                                                                               Plaintiff

                                                                             v.

 

                                               The Attorney General of Nova Scotia

                                   representing Her Majesty The Queen in the right of

                                                       the Province of Nova Scotia

                                                                                                                                           Defendant

 

 

                                                         LIBRARY HEADING

 

 

Judge:             The Honourable Justice Allan P. Boudreau

 

Heard:                        By written submissions received at the end of October and the first of November, 2004

 

Decision on Costs:     December 20, 2004                                       

 

Subject:                       Costs in Civil Cases. 

 

Issue:                          What is an appropriate award of costs where success at the trial is divided?

 

Summary:                   Dexter Construction Company Limited, (Dexter) tendered on a

project for highway and bridge repair with the Department of

Transportation and Public Works for the Province of Nova Scotia, (DTPW).  The project was awarded to Dexter, it being the lowest

compliant bidder.  A contract was entered into between the parties

shortly thereafter.  A few weeks after the contract was finalized, DTPW

became aware that it had made an error in its tendering documents

whereby the Dexter bid could cost DTPW additional monies for repairs

to the concrete deck on the CNR overpass, (the Bridge), portion of

the project.  Dexter has sued for alleged unpaid concrete removal work,

being some $535,000.00, plus interest.


DTPW contends that Dexter knew or ought to have known that item 5.13.02 of the amended tender documents entitled, Concrete Removal

on Bridge Decks - Restoration was in error and that it was an obvious

duplicate of item 5.13.08 entitled, Concrete Bridge Deck Repair

Dexter bid the first item at $1,000.00 per unit and the second item at

$140.00 per unit.  DTPW has paid for all the work in question at $140.00 per unit and Dexter has sued claiming it is entitled to $1,000.00 per unit in accordance with item 5.13.02 of the contract.  A pivotal issue is the state of Dexters knowledge regarding the two items in question at the time of submitting its bid and entering into the contract for the project.

Dexter was partly successful and recovered one half of the amount claimed on the main contract, plus the amount claimed regarding interest on the hold back, as simple pre-judgment interest and not compound interest as claimed.

 

Result:                      Found Dexter entitled to costs based primarily on the amount recovered                                         even though success had been less than the original amount claimed.                                                (Fact Specific)

 

 

 

 

 

 

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