Citation: Dykens v. Mullen, 2013 NSSC 4
Date:20130108
Docket: Ken.No. 281136
Registry: Kentville
Between:
Leonard Dykens
Plaintiff
v.
Randy Mullen and Mullen Contracting Limited
Defendants
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DECISION ON COSTS
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Judge: The Honourable Justice Kevin Coady
Heard: September 10th & 11th, 2012 in Halifax, Nova Scotia
Decison: January 8, 2013
Counsel: Derrick J. Kimball, for the plaintiff
G. Bernard Conway , for the defendants
By the Court:
[1] This Application in Court was heard at Halifax between September 10th and 11th, 2012 and a decision was released on October 3, 2012 (2012 NSSC 347). Judgment was granted against Randy Mullen in the amount of $162,683.87. I concluded that this award did not bind Mullen Contracting Limited. The parties have been unable to agree on costs and written submissions have been provided. Leonard Dykens is clearly the successful party.
MR. DYKEN’S POSITION:
[2] Mr. Dykens submits that the “amount involved” is $162,683.87. Given that this was an action in contract, and this figure represents the damage award, I see no reason to disturb this figure.
[3] Mr. Dykens seeks an order pursuant to Tariff “A”, basic scale which would allow for an award of $16,750.00. He seeks a further $3,000.00 for each day of trial. I accept Mr. Dyken’s view that there was 1.5 days of trial.
[4] Additionally Mr. Dykens seeks recovery of disbursements in the amount of $3,575.77 and prejudgment interest of $40,670.97.
MR. MULLEN’S POSITION:
[5] Defendants’ counsel advances three (3) issues relating to costs as follows:
1. Whether I am functus on the issue of prejudgment interest?
2. Whether the corporate defendant is entitled to costs for successfully defending the claim against it?
3. Whether the plaintiff’s disbursements are lawful and reasonable?
[6] On Issue #1 the defendants argue that if I failed to include an amount of prejudgment interest in the sum for which judgment was given, then I am functus and unable to make such an award at this time. The essence of this argument appears at page 4 of the defendant’s cost submissions:
The case law appears to provide that, notwithstanding that a judgment amount has already been given and the statutory requirement that prejudgment interest is to be included in that amount, that the court is not functus in relation to the PJI issue. If however, your Lordship considered the issue and simply chose not to include prejudgment interest in the amount awarded, the defendants respectfully submit that it is no longer possible to reconsider that issue.
[7] On Issue #2 the defendants submit as follow at page 5 of their cost submissions:
Mullen Contracting Limited successfully defended the claim that Leonard Dyken’s brought against it. It is respectfully submitted that there is no reason to deviate from the practice that costs follow the result and that costs ought therefore be paid by Leonard Dykens to Mullen Contracting Limited.
[8] On Issue #3 the defendants argue that a number of sought disbursements are already caught by interlocutory costs orders. They further argue that several of the sought expenses were the result of the plaintiff’s change of venue and, as such, should not be awarded.
THE PLAINTIFF’S RESPONSE:
[9] Mr. Dykens sees no merit in the positions advanced by the defendants. The reasons given appear in the response memorandum dated December 18, 2012.
PREJUDGMENT INTEREST:
[10] Mr. Mullen cites Volker Stevin Contracting Limited v. Columbia Bulk Transport Inc. 2005 CarswellAlta 1356 (ALTA C.A.) to support the argument I am functus. I have reviewed this authority and I conclude it supports the plaintiff’s position that I am not functus until an order issues.
[11] The case of 369413 Alberta Ltd. v. Polkington 2000 CarswellAlta 327 (ALTA Q.B.) stated as follows:
Based on the authorities cited to me and from my review of the cases cited in those same authorities, I am satisfied that the case law establishes that I am not functus officio either after granting an order or issuing reasons for judgment unless and until the order or judgment is signed and entered. That conclusion is based on the ratio of the case of Re Harrison’s Share under a Settlement, [1955] 1 All E.R. 185 (Eng.C.A.). Jenkins L.J., who wrote for the Court, reviewed a number of English authorities with a view to clarifying the law on when a judge is functus officio. The following quotation addresses the issue on point:
Our answer to this is that, although the judgment dates from the day of its pronouncement, it is not perfected until drawn up, passed and entered, and anyone who acts on it beforehand must take such risk as there is that it will not be drawn in the form in which it was heard to be pronounced.
[12] I will indicate that it was never my intention to exclude prejudgment interest from the plaintiff’s recovery. I took the view that this issue would be resolved after trial by way of either consent or submissions. I will address the quantum of prejudgment interest later in this decision.
MULLEN CONTRACTING LTD.’S CLAIM FOR COSTS:
[13] I do not accept the proposition that Mullen Contracting Ltd. is a successful party. The conduct of this matter did not distinguish between defendants. Mr. Mullen was the sole face of Mullen Contracting Limited and, as such, there was very little distinction between the defendants on the evidence. The corporate defendant was added to avoid any argument that the contract was with the corporate defendant instead of Mr. Mullen.
[14] In the decision I stated at paragraph 30:
I find that the obligation owed to Mr. Dykens is the obligation of Mr. Mullen and not the obligation of Mullen Contracting Ltd. The corporate defendant was employed by 3102673 Nova Scotia Limited during the development of the two projects. It was never part of the contract between Mr. Dykens and Mr. Mullen.
In essence this was a contractual dispute between Leonard Dykens and Randy Mullen. The addition of Mullen Contracting Limited added nothing to the financial and time requirements involved in this litigation. I conclude that the corporate defendant is not entitled to a costs award.
DISBURSEMENT CLAIM:
[15] I have reviewed the party’s submissions on disbursement. For the reasons advanced, I am approving the recovery of $2,500.00 in disbursements by Mr. Dykens.
ANALYSIS:
[16] I conclude that Mr. Dykens is entitled to costs of $16,750.00 pursuant to Tariff “A”, basic scale. I also find that he is entitled to $3000.00 for 1 ½ days of trial. Disbursements of $2,500.00 are added for a total award of $22,250.00
[17] I am not prepared to accede to the plaintiff’s request for prejudgment interest. A costs award should be a substantial contribution to the winning parties costs. The plaintiff’s request would amount to more than a substantial contribution. This was an application in court that took 1 ½ days. The issues were not complex. In light of these factors I am awarding Mr. Dykens $7,500 in interest for a total award of $30,000.00.
[18] This order will be in addition to any interlocutory cost awards.
J.