National Bank Financial Ltd. v. Potter

National Bank Financial Ltd. v. Potter

Court held 2004 tariff is the appropriate starting point for these complex long-running proceedings, but applied discretion to increase AI and add to tariff amounts under CPR 77.07 because NBFL’s conduct and the exceptional complexity and pre-trial exposure (including significant third party claims) made a pure tariff award unjust; offers on the eve of trial did not comply with CPR 10 and could not reduce costs; accordingly the Court awarded enhanced tariff/lump-style awards: Dunham $300,000; Weir group $250,000; Barthe estate $1,004,001; successful plaintiffs trial days $40,000; successful plaintiffs disbursements $123,215.40; NBFL awarded costs $293,501.20 and disbursements $7,178.74...

Citation
2014 NSSC 264
Parties
Plaintiff; Defendant by Counterclaim in Related Actions (collectively Defendant): National Bank Financial Ltd.; Co Defendant With NBFL (named Defendant in Related Actions): National Bank of Canada; Defendant by Counterclaim; Successful Plaintiff on Counterclaim (debt Action): Craig Anthony Dunham; Defendant by Counterclaim; Successful Plaintiff (weir Group): Lowell R. Weir; Defendant by Counterclaim; Successful Plaintiff (weir Group): Blackwood Holdings Incorporated; Plaintiff in Barthe Action; Successful Plaintiff; Defended NBFL Counterclaim/third Party Claims: Estate of the Late Michael Barthe (Barbara Barthe, Executrix); Plaintiff/defendant by Counterclaim in Debt Action; Unsuccessful Plaintiff/defendant: Calvin Wadden; Defendant/third Party (related Actions): Daniel Frederick Potter; Defendant/third Party (related Actions): Gramm & Company Incorporated; Defendant/third Party (related Actions): Starr’s Point Capital Incorporated
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
10 July 2014
Procedural Posture
Civil Litigation Arising From Margin Accounts, Counterclaims and Third Party Indemnity Claims (debt Action and Related Actions) / Costs Decision Following Joint Trial and Judgment (post Trial Costs Assessment)
Outcome
Costs awarded as detailed below; 2004 tariff used as starting point with increases for complexity and conduct; NBFL’s settlement offers on the eve of trial were not formal under CPR 10 and did not reduce costs entitlement.
Legal Topics
Costs Assessment, Tariff a Application, Pre Judgment Interest, Punitive Damages, Third Party Indemnity, Settlement Offers (cpr 10), Margin Debt Claims
Source Language
English
Civil Procedure Contract Tort Fiduciary Duty Securities Law Costs Law Costs Assessment Tariff a Application +5 more

Case Brief

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Parties

National Bank Financial Ltd.

Plaintiff; Defendant by Counterclaim in Related Actions (collectively Defendant)

National Bank of Canada

Co Defendant With NBFL (named Defendant in Related Actions)

Craig Anthony Dunham

Defendant by Counterclaim; Successful Plaintiff on Counterclaim (debt Action)

Lowell R. Weir

Defendant by Counterclaim; Successful Plaintiff (weir Group)

Blackwood Holdings Incorporated

Defendant by Counterclaim; Successful Plaintiff (weir Group)

Estate of the Late Michael Barthe (Barbara Barthe, Executrix)

Plaintiff in Barthe Action; Successful Plaintiff; Defended NBFL Counterclaim/third Party Claims

Calvin Wadden

Plaintiff/defendant by Counterclaim in Debt Action; Unsuccessful Plaintiff/defendant

Daniel Frederick Potter

Defendant/third Party (related Actions)

Gramm & Company Incorporated

Defendant/third Party (related Actions)

Starr’s Point Capital Incorporated

Defendant/third Party (related Actions)

Procedural Posture

Civil Litigation Arising From Margin Accounts, Counterclaims and Third Party Indemnity Claims (debt Action and Related Actions) / Costs Decision Following Joint Trial and Judgment (post Trial Costs Assessment)

Legal Issues

  1. 1 Whether 1989 or 2004 tariff applies as starting point for party-and-party costs
  2. 2 How to determine amount involved (AI) where complexity and importance substantially exceed nominal awards
  3. 3 Whether conduct of NBFL justifies addition to tariff or lump-sum costs

Ratio Decidendi

Court held 2004 tariff is the appropriate starting point for these complex long-running proceedings, but applied discretion to increase AI and add to tariff amounts under CPR 77.07 because NBFL’s conduct and the exceptional complexity and pre-trial exposure (including significant third party claims) made a pure tariff award unjust; offers on the eve of trial did not comply with CPR 10 and could not reduce costs; accordingly the Court awarded enhanced tariff/lump-style awards: Dunham $300,000; Weir group $250,000; Barthe estate $1,004,001; successful plaintiffs trial days $40,000; successful plaintiffs disbursements $123,215.40; NBFL awarded costs $293,501.20 and disbursements $7,178.74...

Court Disposition

Costs awarded as detailed below; 2004 tariff used as starting point with increases for complexity and conduct; NBFL’s settlement offers on the eve of trial were not formal under CPR 10 and did not reduce costs entitlement.

Orders

  • Awarded Dunham costs against NBFL: CAD 300000
  • Awarded Weir group (Lowell Weir, Blackwood Holdings, Carol MacLaughlin-Weir) costs against NBFL and NBC: CAD 250000