Vancouver, Maximillian: Strata Corporation loses court bid to get costs against strata lot owner

Citation:

Owners, Strata Plan VR1767 v. Seven Estate Ltd. et al.

Date:

20020530

 

 

2002 BCSC 827

Docket:

S063877

 

Registry:  New Westminster

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

THE OWNERS, STRATA PLAN VR1767

PETITIONER

AND:

SEVEN ESTATE LTD. AND
THE IMPERIAL LIFE ASSURANCE COMPANY OF
CANADA

RESPONDENTS

 

 

 

REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE MARTINSON

 

 

Counsel for the Petitioner

G. S. Hamilton

Counsel for the Respondents

J. H. Rosner

Date and Place of Hearing/Trial:

May 16, 2002

 

 

Vancouver, B.C.

 

INTRODUCTION

[1]            I gave written reasons in this “leaky condo” case:  2002 BCSC 381.  This is an application by the Owners for costs.  The circumstances are fully canvassed in the reasons for judgment and I will not repeat them here.  At the conclusion of that judgment I said:

[60] Each party shall pay its own costs unless either party applies to the court for a different order within 30 days of the date of these reasons for judgment.

 

[2]            The Owners have applied for costs at Scale 3.  Seven Estate says that each party should pay its own costs.

THE OWNERS’ ARGUMENTS

[3]            The Owners point to the following background information in support of their application for costs:

1.    On December 1, 2000, the Strata Corporation commenced its Petition against Seven Estate Ltd. to recover unpaid special levies.  The amount claimed by the Petitioner at the commencement of proceedings totaled $62,240.27.

 

2.    Before initiating legal proceedings against Seven Estate Ltd., a demand was made for payment and a Certificate of Lien was registered against title to the property owned by Seven Estate Ltd.  Seven Estate Ltd. refused to pay any amounts whatsoever to the Petitioner and, therefore, the Petitioner had no choice but to commence legal proceedings.

 

3.    After the commencement of the Strata Corporation’s proceedings, Seven Estate Ltd. took the position that it was not obligated to pay any amounts whatsoever to the Petitioner as a result of an agreement between the Petitioner and Seven Estate Ltd. made in 1989.

 

4.    The Strata Corporation amended its Petition in February, 2001 to claim the sum of $124,480.54 based on the unit entitlement of Seven Estate Ltd.’s strata lot of 4030 registered at the Land Title Office.

 

[4]            They advance the following arguments:

1.    The refusal of Seven Estate Ltd. to pay any amounts whatsoever towards the special levies made it necessary for the Strata Corporation to commence legal proceedings under the provisions of the (Strata Property Act)Prior to the commencement of the legal proceedings, the Strata Corporation was asking Seven Estate Ltd. to pay the sum of $62,240.27 (i.e., a special levy based on a unit entitlement of 2015), the amount ordered by the Court to be paid.

 

2.    It was only after Seven Estate Ltd. raised the 1989 agreement as a complete defence to the Strata Corporation's Petition that it was determined by the Strata Corporation that the unit entitlement for strata lot 3 had not been reduced at the Land Title Office and, therefore, the Strata Property Act required the Strata Corporation to assess unit entitlement based on a calculation of 4030.

 

3.    At no time did Seven Estate Ltd. offer to pay an amount equal or even close to that ordered by the Court under the Strata Corporation’s Certificate of Lien.

 

4.    In our submission, it was the conduct of Seven Estate Ltd. that necessitated the commencement of legal proceedings by the Strata Corporation.  Moreover, in our submission, the Strata Corporation was successful in its Petition as it was awarded an amount payable under its Certificate of Lien.  That is, the Petitioner was completely successful in proving Seven Estate Ltd.’s liability under the Certificate of Lien and only the quantum of the claim was different than as submitted.  See Gutoski v. Hammett, 1998 Carswell BC 623.

 

5.    As a result of Seven Estate Ltd.’s refusal to pay the special levy, the Petitioner has incurred considerable expense which has eroded Seven Estate Ltd.’s contribution to the building repair.  Whatever is not recovered from Seven Estate Ltd. must now be paid by other owners through another levy.  In our submissions, this would operate unfairly against owners who have already faced considerable financial hardship to repair a “leaky condo”.

 

DISCUSSION

[5]            The Owners were successful in proving Seven Estate’s liability under the Certificate of Lien.  However, they claimed $124,480.54 and did so by a specific amendment to the pleadings.  They pursued that claim through to conclusion and obtained judgment for only one-half that amount.  Success at the hearing was divided, and in my view it is appropriate that each party should pay its own costs.

[6]            When a party chooses to pursue a claim at trial, it requires the other party to respond to it, and to incur the resulting expense.  In the circumstances of this case, the Owners cannot pursue to conclusion a claim for double the amount they were prepared to settle for, and then say that they should not have to pay costs because they were prepared to settle.

CONCLUSION

[7]            The Owners' application for costs is dismissed. 

[8]            Seven Estate is entitled to its costs of this application at Scale 3.

“D.J. Martinson, J.”
The Honourable Madam Justice D.J. Martinson

Court denies order that Balderson produce leaky rotten condo records

Citation:

Healey v. The Corporation of the City of Coquitlam et al

Date:

20020603

 

 

2002 BCSC 842

Docket:

C996637

 

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

DAN HEALEY

PLAINTIFF

AND:

 

THE CORPORATION OF THE CITY OF COQUITLAM AND
THE CORPORATION OF THE CITY OF PORT COQUITLAM AND
HER MAJESTY IN RIGHT OF THE PROVINCE OF BRITISH COLUMIBA

 

DEFENDANTS

 

 

REASONS FOR JUDGMENT
OF
MASTER BARBER
(IN CHAMBERS)

 

 

Appearing on his own behalf:

Dan Healey

Counsel for the Defendants:
City of
Port Coquitlam and City of Coquitlam

 

L. Krebs

Counsel for James Balderson and The Coalition of Leaky Condo Owners:

 

A.M. Grant

 

Date and Place of Hearing:

May 14, 2002

 

 

Vancouver, BC

 

[1]            The Plaintiff applied by notice of motion dated February 25, 2002, filed May 2, 2002, for an order:

1.    Of production of documents against the City of Port Coquitlam;

 

2.    The City of Coquitlam in regards to the file’s and/or file described as “Leaky Condo’s”;

 

3.    For production of documents from a non-party to the action, C.O.L.C.O. and James Balderson.

 

[2]            In the statement of claim the plaintiff alleges, inter alia, that he suffered damage to his real property by way of water damage due to the negligent administration of the building code.  He alleges that the damage was foreseeable by the defendants.  And that the Crown had actual or constructive knowledge that the building code was insufficient to prevent damage.  In addition, he alleges that the defendants had a duty to inform him about the hazardous code practices.  This is a brief overview of the twenty page statement of claim. 

[3]            I will deal first of all with the request for orders number one and two, against Port Coquitlam.  What the plaintiff really wants is number two.  Coquitlam admitted that it did have a leaky condo file but says that it is irrelevant and that there are few privileged items in it. 

[4]            The affidavits of Adrienne G. Atherton, sworn March 12, 2002 and Mr. Ian D.M. Mackie, sworn the same date were tendered by Coquitlam’s solicitors in defence of the motion.  According to the statement of claim the plaintiff purchased his condominiums in 1994 and 1995.  He says that he became aware of the damage in 1999.  It appears from the aforementioned affidavits that there are documents in Coquitlam’s files which relate to the time in question and which may, under the test in Dufault and Stevens be relevant in that they could have notes or memorandum attached to them by members of the defendants bearing on the issues in question.  Therefore, Coquitlam’s Leaky Condo file is to be produced, except for those documents over which they claim privilege.  Those later documents are to be listed under part 3, of their list of documents, and then if there is still a question as to whether or not they should be produced that issue can be heard.

[5]            With respect to the claim for an order against COLCO – there is no such formal entity and thus that application is dismissed.

[6]            That leaves the claim for an order against James Balderson.  Mr. Balderson, through his counsel, objects to produce his file and his reasons are succinctly set forth in his affidavit as:

(a)   the request of documents are irrelevant;

 

(b)   the applicant has not provided any basis upon which the court can determine whether the request of documents are in fact relevant;

 

(c)   it would be highly prejudicial to Mr. Balderson to be compelled to provide such documents;

 

(d)   some of the documents have been provided to Mr. Balderson on the condition that they be considered confidential

 

(e)   many of the documents have been prepared in contemplation of litigation and are therefore privileged.

 

[7]            The plaintiff, in his affidavit number two, filed May 2, 2002 says:

4.    The Plaintiff is of the belief that documents used to produce the list described as Leaky Rotten Condos are vital to his case and furthermore the documents themselves in the hand of structural engineering experts will reveal clear patterns of Building code liability that the Coalition of Leaky Condo Owners are not aware of and/or are deliberately concealing from the public.

 

5.    The Plaintiff theorizes the refusal from James Balderson and/or the Coalition of Leaky Condo Owners to share this information bares the view they have something to hide and/or the information is relevant to building code liability.

 

[8]            While the test in Dufault and Stevens is a low one, the plaintiff has not passed the test in this case.  Therefore, the application for an order against Mr. Balderson is dismissed with costs payable by the plaintiff forthwith after assessment.

“Master Barber”