Grewal v. Grewal

2014 BCSC 1545 Grewal v. Grewal IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Grewal v. Grewal, 2014 BCSC 1545 Date: 20140814 Docket: S17239 Registry: Chilliwack Between: Harminder Singh Grewal Petitioner And Harbans Singh Grewal and Zora Singh Grewal Respondents - and - Docket: S110167 Registry: New Westminster Between: Harbans Singh Grewal Plaintiff And Harminder Singh Grewal and Zora Singh Grewal Defendants Before: The Honourable Madam Justice E.A. Arnold-Bailey Reasons for Judgment regarding Costs Counsel for Harminder Singh Grewal: Douglas MacAdams, Q.C. Harbans Singh Grewal: In Person Counsel for Zora Singh Grewal: Guy P. Holeksa Place and Dates of Hearing: New Westminster, B.C. November 8, 2013 and January 31, 2014 Place and Date of Judgment: New Westminster, B.C. August 14, 2014 Introduction [1] As the successful parties in protracted litigation, Harminder Singh Grewal ("Harminder") and Zora Singh Grewal ("Zora") seek costs from their brother, Harbans Singh Grewal ("Harbans") in relation to a petition seeking the partition and sale of property upon which they operated a blueberry farm ("the partition action") (Chilliwack Reg. No. S17239) and certain parts of an action brought by Harbans against Harminder and Zora ("the ownership and accounting action") (New Westminster Reg. No. S11067). [2] I am the judge who dealt with the partition action. It was a long, drawn-out and hard-fought proceeding, involving many court applications and the appointment of a receiver to manage and sell the berry farm property ("the berry farm"). The receiver recommended sale of the berry farm to Harminder and Zora, which ultimately occurred. As a result of an order made on January 23, 2009, $340,000 of the proceeds due to Harbans from the sale of his interest in the berry farm have been held as security for Harminder's costs in the partition action and related actions. Similarly, an amount of $105,000 as security for Zora's costs is being held. [3] The ownership and accounting action was commenced by Harbans after the Court ordered that the berry farm be sold. It eventually proceeded to trial with Mr. Justice Crawford presiding. One of the issues to be decided at trial was whether the proceeds from the sale of the berry farm ought to be divided other than one-third each to the three brothers because Harbans claimed that he was entitled to significantly more of the sale proceeds than his one-third interest as stated on the title. This claim is sometimes referred to as "the trust claim." [4] Prior to the ownership and accounting action gaining the momentum that eventually carried it to trial before Crawford J. for 20 days, I was also required to deal with an application in the ownership and accounting action due to its interrelated nature with the partition action, namely an application to remove the Certificate of Pending Litigation ("CPL") filed by Harbans against the title of the berry farm and the posting of security in order to effect its sale. [5] I note that the trial before Crawford J. included two additional actions between Zora and Harbans and other members of their family regarding matters not directly related to the berry farm issues. [6] These reasons address the applications by the successful parties, Harminder and Zora, for costs against Harbans in relation to the partition action and the parts of the ownership and accounting action over which I presided. Harminder and Zora seek special costs; or failing that, party and party costs pursuant to Appendix B of the Supreme Court Civil Rules, B.C. Reg. 168/2009 ["the Rules"] to be assessed as Scale C for matters of more than ordinary difficulty with an "uplift" of 1.5 times the value that would otherwise apply to a unit pursuant to s. 2(5) of Appendix B. In addition, Harminder seeks an award of costs for abandoned appeals. The Hearing of this Application [7] Harbans did not attend the hearing on November 8, 2013. I am satisfied that he knew about it or chose to be wilfully blind as proper steps were taken to effect service of the notice of hearing of these applications, including service of Harbans. [8] Harbans' former counsel at different times (Mr. Perry, Mr. Brindle, Q.C. and Mr. Peana) had gotten off the record in relation to the ownership and accounting action and Harbans had filed a notice of intention to act in person. However, Mr. Brindle remained on the record as counsel for Harbans in the partition action, but without instructions. Harbans' previous counsel in the partition action had been Mr. James Klassen, followed by Mr. Alexander Jeletzky. [9] On November 8, 2013 Mr. Brindle and Mr. Peana from Singleton Urquhart LLP appeared before the Court and sought an adjournment of these applications, which was denied. At that time there was some suggestion that Harbans might be in India. Given that Singleton Urquhart LLP was holding $445,000 in trust pertaining to this litigation in relation to their client Harbans, counsel expected to hear from him. Of that amount, a letter from the firm to Harbans dated November 15, 2013, indicated that the firm currently held $431,426.30 as security for special costs being sought against him by Harminder and Zora pursuant to a prior order by the Court. [10] The Court considered it prudent to hear the costs applications on November 8, 2013 and did so, but set some deadlines to be communicated to Harbans by which, if he wished to do so, he could file material and appear to make submissions, with court time on January 31, 2014 at 2 p.m. being set aside for that purpose, and also for further submissions by the other parties in reply. [11] I note that after a contested hearing before Master Keighley on December 6, 2013 at which Harbans did appear, Master Keighley granted an order that Mr. Brindle, Q.C. of Singleton Urquhart LLP was no longer counsel of record for Harbans in the partition action with the result that Harbans became officially self-represented in relation to the present applications. [12] Harbans filed some material prior to the deadline set by the Court of 4 p.m. on December 15, 2013 and appeared on January 31, 2014, with a binder of additional materials to make submissions on his own behalf. The Court accepted those additional materials over the objection of counsel for Harminder and Zora. [13] I have reviewed the material filed by Harbans. The binder contains a compilation of previously filed pleadings and affidavits by all parties that relate generally to the matters litigated. The materials appended to Harbans' affidavit filed on December 13, 2013, relate to the costs issue on the ownership and accounting action and the other actions before Crawford J., and a copy of a transcription of Crawford J.'s oral reasons for judgment after the trial in that case, dated September 2, 2011. Neither those materials nor the binder provided to the Court on January 31, 2014, address the specific costs' issues before me, although they contain some useful submissions on the issue of special costs generally. [14] On January 31, 2014, Harbans sought to further adjourn the costs applications by Harminder and Zora, referring to fractures in his back that he sustained in 2011, and he stated that he was suffering from depression. He did not provide any independent supporting evidence of poor health. He claimed that he did not receive any material regarding these applications prior to him going to visit family in Union City, California. He was vague about his past whereabouts except to say that he was in Union City on September 20, 2013, and was there during September and October; he was not sure for how long he had been there as he did not have his passport with him. He said he was under the impression that his prior counsel were not yet off the record, and had only received certain materials from Singleton Urquhart on November 15, 2013. [15] On January 31, 2014 Harbans' wife also came to court and advised that she is seeking a divorce from him and making claims on family property. She provided a copy of a document that both Mr. MacAdams and Mr. Holeksa indicated that they had seen previously. She appears to have retained Mr. Jeletzky, one of Harbans' prior counsel in the partition proceeding, to represent her in the family law action. She did not make submissions of substance in relation to the costs issues at hand. [16] Harbans is not an unsophisticated man. He has been very successful in business as noted by Crawford J. in his reasons for judgment. He has retained many lawyers to pursue legal actions on his behalf over the years and he has filed a number of appeals in the Court of Appeal, retaining counsel to pursue matters there. He has commenced a number of actions relating to businesses he has run and against his brothers in the context of the berry farm. [17] The Court has afforded to Harbans several months over and above the time he was entitled to under the Rules, to make a proper response to the present applications and he failed to do so. He has known for years that special costs would ultimately be sought against him in the partition action and for the parts of the ownership and accounting action heard by me. The application brought by Harminder that sought security for costs in the partition action and special costs was filed January 15, 2009. Subsequent court orders were made resulting in funds otherwise payable to Harbans being held as security for future costs awards. He knew those funds were being held by his legal counsel. Harbans had no proper basis upon which to delay the present applications, which would serve only to further increase the legal costs of Harminder and Zora. It is on this basis that I proceeded to hear and now to decide the issue of costs. The Scope of this Application [18] This application encompasses all costs in relation to the partition action and for those matters heard by me in the ownership and accounting action. [19] Mr. Justice Crawford in his Supplemental Reasons for Judgment Re: Costs in Grewal v. Grewal, 2014 BCSC 257, stated which matters he was not including in his costs' decisions in relation to the partition matter and the ownership and accounting action as follows: [3] Madam Justice Arnold-Bailey heard the Grewal Berry Farm case ("the Partition Action") in a different registry, namely Chilliwack Action No. S17239 from approximately mid-2007. [4] In the Partition Action, the berry farm was subject to partition, the appointment of a receiver and eventually the sale of the property to Harminder Grewal and Zora Grewal. On June 20, 2008 in a ruling regarding removal of a Certificate of Pending Litigation involving both actions, Arnold-Bailey J. allowed the removal of the Certificate of Pending Litigation on the provision of $375,000 security by Harminder and Zora Grewal. [5] In early 2008 Harbans Grewal started these proceedings in New Westminster, Action No. S110167 ("the Ownership and Accounting Action"). [6] By May 2008 I had begun case managing the Ownership and Accounting Action and almost immediately had to deal with an application by Harbans Grewal to remove Mr. MacAdams as counsel for Harminder Grewal. While the action was withdrawn, l subsequently made an award for special costs against Harbans Grewal. [7] The trial regarding the Ownership and Accounting Action began before me in mid-2009 and ended in early 2010. The accounting did not conclude until the settlement of the order on March 28, 2013. [8] I gave my costs ruling in the Ownership and Accounting Action on November 26, 2013. [9] In January and February 2009, Arnold-Bailey J. heard an application in the Partition Action, by Harminder and Zora Grewal that monies payable to Harbans Grewal be placed in trust pending Harminder Grewal's application for special costs in relation to the Partition Action. By order made February 10, 2009 Arnold-Bailey J. made an order that $340,000 of Harbans Grewal's funds from the sale of the farm be held as security for costs in both the Partition Action and all related proceedings including the Ownership and Accounting Action. [10] My conclusion is that the costs award in the Ownership and Accounting Action should be governed by my costs ruling, save and except all those matters heard by Arnold-Bailey J. in the Partition Action, including the hearings in January and February 2009. Once Arnold-Bailey J. has made her costs ruling in the Partition Action, any monies left in trust may be subject to orders made in the Ownership and Accounting Action. [20] These reasons were rendered on February 18, 2014, which was after the November 8, 2013 hearing of the present applications. In the same reasons Crawford J. considered whether Zora was entitled to receive special costs on the same basis as Harminder and concluded: [11] I note in paragraph 40 of the costs ruling I found that Harminder and Zora Grewal had substantial success and that they won the berry farm ownership issue. I accepted Harminder Grewal's argument that Harbans Grewal pay special costs, but only relative to the time he spent on the farm ownership issue, which I ruled in paragraph 44 was approximately 20 percent of the total trial. [12] After consideration of my trial notes I find that Zora Grewal spent somewhat less time regarding the ownership issue. Harminder Grewal carried the greater part of that issue, and I find that Zora is entitled to 15 percent of total trial time in special costs. [21] With regards to an uplift to 1.5 times the value that would otherwise apply to a unit of costs awarded under Scale C, Crawford J. concluded: [18] In the overall consideration of the claim it is not to be forgotten that Harbans Grewal's monies carried the farm operation for a considerable period, and he was entitled to claim his contributions, subject to the arguments over contested items, and contributions of his brothers. Due to the rulings I initially made, the accounting process had to be revisited, but in my view there was not the degree of misconduct or unusual circumstance as to attract an additional 1.5 increase in the Scale C costs. [19] In sum then, Harminder Grewal and Zora Grewal are entitled to special costs with respect to Harbans Grewal's trust claim, and Scale C costs for the balance of the trial regarding the berry farm in preceding and post-trial matters. [22] Taking a further step back in time, Crawford J. made a costs ruling in the ownership and accounting action in Grewal v. Grewal, 2013 BCSC 2153 in which he stated: [36] During the trial, all parties made serious accusations against the other regarding the farm's operation, particularly as between Harbans and Harminder. Additionally, Harminder and Zora failed to comply with the CPL order's requirement to report the income and expenses of the farm operations. [37] The two principal issues I need to consider are substantial success and special costs. I do so in light of the trial largely consisting of three portions: (1) Harbans's claim that a resulting trust or oral agreement would displace the face of the title showing the three brothers as the farm's equal owners; (2) the accounting issue that arose because Harbans was the primary funder of the farm's ongoing operations up to mid-2007; and (3) the claims between Harbans and Zora over their joint family properties due to the relationship breakdown between them. [38] Harbans pursued Harminder and Zora over his contribution to the farm's operations. Without his contributions from 2005- 2007, there might not be a berry farm to fight over. Over time, his contributions were much larger, and I cannot forget that he was contributing to the joint family economic unit with Zora until the relationship broke down in late August 2006. [39] Harbans's claim regarding a trust or oral agreement appears to have been a belated thought that his previous actions or conduct do not support. His change in legal tactics drew Arnold-Bailey J.'s warning in late 2007 and again in mid-2008 regarding the dangers of pursuing what she viewed as a meritless claim. Yet, Harbans continued. [40] When I look at the overall trial and the issues relating to the berry farm's ownership, operation and accounting, I find Harbans and Zora had substantial success. They won the berry farm ownership issue. I found no basis for Harbans's evidence regarding the oral agreements. Indeed, I note that when Mr. Gill set-up the partnership agreement, it was only for the farm operation. [41] I turn then to whether I should award special costs on that aspect. I accept Harminder's argument that Harbans pay special costs, but only relative to the time spent on the claim Harbans made regarding a trust or oral agreement. [42] Although I have not specifically reviewed the trial time in detail, on reviewing my daily trial index, approximately two-thirds of the trial time was spent on the farm issues but the larger part related to the farm's operations and accounting; the evidence of contributions; and cross examinations of the various parties' contributions. [43] The other one-third of the trial relates to the joint family economic unit of Harbans and Zora and dividing their joint assets, and I have dealt with that elsewhere. [44] Turning back to the berry farm issues and the argument over the title and the accounting, I would ascribe one-third of the berry farm trial to the issue over the title and two-thirds to the accounting - i.e., about 20% of the total trial draws a special costs award. [45] Regarding the berry farm accounting, I conclude that Harminder and Zora were the successful parties because they succeeded in substantially reducing Harbans's claims and outright defeating a number of other claims - e.g., the berry plant's value. To that portion of the claim, Harbans and Zora are entitled to costs at Scale C, due to the length of trial, the factual complexities, the hard fought issues and the effort required in the collection and proof of facts. [23] Given the overall thrust of the above paragraphs I have concluded that in para. 40 above Crawford J. meant to state that Harminder and Zora had enjoyed substantial success in relation to the issues pertaining to the berry farm's ownership, operation and accounting. The learned justice himself stated exactly that at para. 11 of his later Supplemental Reasons for Judgment Re: Costs, also quoted above. [24] Indeed, in his oral reasons for judgment dated September 2, 2011, in relation to the three actions heard at trial by him, Crawford J. found at para. 66 that "the farm was purchased by the brothers and held in their names as equal one-third contributors." He found at para. 67 that the ownership of the berry farm was established on the face of the title to the property, by the conduct of the parties and in my reasons for judgment. He accepted the title as reflecting the true ownership of the property upon which the berry farm was operated. [25] Therefore, insofar as the outcome of the ownership and accounting action impacts upon how costs ought to be allocated in relation to the partition action, I take into account that Harminder and Zora were the substantially successful parties. They ultimately resisted the efforts of Harbans to have a larger percentage of the ownership of the berry farm re-allocated to him, from the one-third interest each upon which partition, the subsequent appointment of the receiver and the sale of the berry farm was predicated. This also means that his placement of the CPL against the entire property upon which the berry farm was operated that served to delay the sale of the berry farm to Harminder and Zora was overbroad and ill-founded. Harminder's Position [26] Harminder has filed comprehensive submissions on costs which I have reviewed and considered. The submissions include a complete inventory of the various applications adjudicated upon by the Court in relation to the partition action and those pertaining to the ownership and accounting action. I will not summarize them here because I have been assisted by those submissions in my review of these proceedings. [27] Accompanied by a detailed records and an itemized breakdown, Harminder seeks special costs in relation to the partition proceeding of $287,260.05 from the summer of 2007 to April 30, 2013. This amount is stated to include fees, taxes on fees, disbursements and taxes on disbursements with MacAdams Law Firm and with Robertson Downe and Mullally, the firm that earlier had conduct of this matter. This amount does not include preparation for this hearing. The best estimate of Harminder's party-party costs in the partition action assessed on Scale B is $42,406.83, which is less than 15% of Harminder's actual legal expenses. [28] Harminder also seeks special costs in relation to the ownership and accounting action with regards to proceedings related to cancelling the CPL of $50,000. This is an approximate amount that includes the account of Mr. Bruce McLeod, whose services were required to represent Harminder when the application had been brought to disqualify Mr. MacAdams as counsel for Harminder. Mr. McLeod's bill to Harminder for fees, taxes, disbursements and taxes on disbursements is $40,012.83 and an estimated $10,000 for services providing documentation and support to Mr. McLeod for that application by MacAdams Law Firm. A party-party bill of costs has not been prepared for this one application but it would be minimal. [29] Harminder also seeks a re-allocation of costs related to the receiver in the amount of $14,575; and party-party costs with regards to proceedings in the Court of Appeal that were abandoned of $3,200. [30] In the event that the Court does not award special costs, then Harminder seeks costs at Scale C with an uplift. In addition, he seeks costs at Scale C for the present application. He does not seek costs in relation to what has come to be known in these proceedings as Harbans' application to "Punt MacAdams" - an application to have Mr. MacAdams disqualified as counsel for Harminder - during which Mr. Bruce McLeod was his counsel. Costs with regards to this aspect of the proceedings were dealt with by Crawford J., who awarded special costs against Harbans. Zora's Position [31] Zora seeks special costs in both the partition action and the ownership and accounting action for the periods of April 7, 2008 to July 21, 2008 and January 1, 2009 to February 12, 2009. Alternatively, in each action and for the same periods Zora seeks to recover costs at Scale C, a costs uplift pursuant to s. 2(5) of Appendix B, and special costs or costs for this application. [32] In relation to the first period, Zora's notice of application stated the dates to be for proceedings from April 1, 2008 to June 30, 2008, and then stated that Zora's legal fees arose from April 7, 2008 to July 21, 2008. I have chosen the latter date. During this time the Court heard two applications. The first was an application by Harminder and Zora to approve the sale of the berry farm in the partition action. Zora (and Harminder) were successful in both applications, as on May 2, 2008 the Court ordered that the offer to purchase the berry farm by Harminder and Zora in the amount of $5,406,000 be accepted, and on June 20, 2008, the Court ordered that the CPL be lifted upon the posting by Harminder and Zora of $375,000 as security. [33] For the first period of April 7, 2008 to July 21, 2008 Zora's legal fees were stated to be $100,604.49. The costs that would be payable on Scale B for these services are approximately $5,000. In subsequent affidavits of Mylinda Pearson, both sworn on November 7, 2013, she deposed that she had failed to include the amount for fees, taxes and disbursements incurred by Zora Grewal in relation to the application to remove the CPL and matters related to it, approximated to be $50,000; and an amount of $9,000 relating to an application for approval of the sale. It is not clear to me whether these amounts are included in the amount previously stated or not. [34] In relation to the second period, from January 1, 2009 to February 12, 2009, further applications were brought, initially on behalf of Jenkins Marzban Logan LLP as the former solicitors for Zora, and then on behalf of Zora, once he again retained his former counsel, Mr. Holeksa. The result of this application was that Zora was ultimately successful in having $105,000 otherwise payable to Harbans held as security for Zora's costs. Zora's legal fees for this period are estimated to be in the range of $22,000. [35] In his submissions, counsel for Zora submitted that Harbans' approach throughout, once Zora decided to align himself with Harminder instead of Harbans, was to attempt to wear out both of his brothers financially and psychologically by protracted litigation. The claim he brought in the ownership and accounting action fell far short of the mark. He was claiming $1,700,000, including $400,000 for berry plants, and after trial obtained about $150,000 in addition to a $75,000 shortfall he was entitled to arising from the sale of the berry farm and some other agreed-upon amounts. Mr. Holeksa submitted that on December 7, 2007 when faced with reasons in the partition action for an order for sale, Harbans made up his claim to a greater portion of the berry farm than the one-third interest reflected on the title. Despite being warned by the Court then, Harbans subsequently persisted and eventually his evidence about certain conversations he claimed had occurred that were supposed to support his claim, were found not to have taken place by Crawford J. [36] Counsel for Zora stressed that by persisting to make false claims that Harbans was warned by the Court were weak, and then by commencing the ownership and accounting action, Harbans engaged in conduct that ought to attract special costs being awarded against him. He further submits that after the sale of the berry farm was complete Harbans ought to have applied for a re-allocation based on what he asserted his true beneficial interest to be, which then could have been litigated in the partition proceeding based on affidavits. In this manner, he submits that the matter could have been dealt with in a very focused and cost effective way. Harbans' Position [37] The majority of the late-filed material by Harbans was not provided in advance to counsel for the other parties, who objected to its admission. I have already indicated that most of it was a compilation of materials related to earlier aspects of the litigation. [38] However, in his application response filed on December 13, 2013 in the partition action Harbans set out a number of reasons why special costs ought not to be awarded against him of which I take note. He submits that Harminder has not alleged or asserted a single fact that would entitle him to an award of special costs. He then claims that as he contributed about 74.5% of the down payment for the berry farm he was prima facie entitled to a 74.5% interest in the berry farm. This assertion does not reflect the ultimate findings by Crawford J. that each of the brothers was entitled to a one-third interest in the berry farm. [39] Harbans further submits that the position taken by him in this litigation was no different from the vast number of litigants whose cases are dismissed by this Court with ordinary costs being assessed against them, absent special circumstances or reprehensible conduct. He submits that there are no circumstances, conduct or evidence before the Court that warrants an award of special costs. He denies that he was in a financially superior position to Harminder and Zora during the trial and points to their receiving the profits of the berry farm during the legal proceedings. The Nature of this Litigation [40] The litigation between Harminder, Harbans and Zora Grewal in relation to the berry farm has been lengthy and complex. There have been many applications in the context of the partition action and many in relation to the actions that proceeded to trial before Crawford J. By my count I have made nine separate orders arising from applications in the partition action alone and have rendered three oral judgments. In relation to the ownership and accounting action I have made one order arising from one oral judgment, which was unsuccessfully appealed to the Court of Appeal. I do not propose to review each in detail, but merely to refer to some key parts of these proceedings. [41] In its initial stages in late June and early July 2007 Mr. Justice Silverman and Mr. Justice Truscott heard applications restraining Harminder from being present at the berry farm and permitting Harminder to appoint representatives to be present to supervise the berry harvest. Then in mid-July 2007 Zora decided to support Harminder and they joined forces. Having a prima facie one-third interest each, the two of them together had a majority interest in the berry farm; the conduct and management of the berry farm shifted to them and Harbans was ordered not to interfere, as reflected in my order made on July 19, 2007. From that date on all proceeds from the 2007 blueberry crop were to be paid to the law firm of Mr. MacAdams to be held in trust and no cash sales from the farm were permitted. Harbans had the right to appoint representatives to supervise the harvest. Harminder and Zora were to keep the necessary records to document the production and sale of berries from the berry farm. The Court heard further applications relating to management of the berry farm and authorizing the payment of bills incurred in relation to maintaining the farm and harvesting the berries. [42] Ultimately, the Court was called upon to deal with an application for partition and sale of the berry farm. In oral reasons for judgment delivered on December 7, 2007, the Court ordered that the berry farm be sold. Parts of these reasons are instructive in terms of the present application for several reasons. First they provide considerable history of the case. Second, they indicate that the pattern of behaviour engaged in by Harbans to make last minute adjournment applications, change his position and his legal counsel, and ultimately to draw proceedings out beyond anything that may be considered reasonable. [43] The judgment delivered on December 7, 2007, includes the following: [1] THE COURT: First, in relation to this matter, I am going to deal with a last-minute application to adjourn my reasons in relation to the Petitioner's application for partition or sale of a 61-acre farm called "Prince Farms" in Langley (the "Property") owned by the three Grewal brothers. Given that these three brothers all have the same middle and last name, I will be referring to them throughout these reasons as "Harminder", "Harbans", and "Zora", not out of any disrespect, but because that is simply the only efficient way to proceed. [2] This last-minute adjournment application is being made on behalf of Harbans, who is effectively the only remaining Respondent opposed to an application for sale of the Property that was initially bought by Harminder, who became supported in his application just prior to the application coming into Court in July of this year by the Respondent Zora. Therefore, the Petitioner's application has been before the Court for a considerable period of time, and each of the Grewal brothers has been represented by counsel throughout. [3] The application before me today, brought by Mr. Jeletzky, now retained by Harbans, to adjourn this matter, is made because apparently Harbans lost confidence in Mr. Klassen, who was his counsel from the spring through to the hearing we had on September 28, 2007 to deal with the matter of what accounts should be paid relating to the farming operations being carried out on the Property. Apparently, Harbans lost confidence in his former counsel at that time and just last week retained Mr. Jeletzky. Today Mr. Jeletzky has put before the Court a last-minute adjournment application and some affidavit material, the import of which is to attempt to cast some doubt on the one-third interest that each brother has in the Property. [4] I am not going to grant the adjournment of my oral reasons in relation to the Petitioner's application for a number of reasons. [5] First, as I have indicated, Harbans has been represented by counsel throughout. [6] Secondly, the matter has been before the courts on numerous occasions since July 2007 to deal with urgent pressing applications relating to the day-to-day operation of the berry farm, and Harbans has been represented by counsel and has opposed much of the relief sought by the Petitioner, Harminder, who is supported by Zora, who together have a two-thirds interest in the Property. [7] Third, it is clear that there is a long-standing dispute between the Grewal brothers that encompasses not just the Property, but the farming operations carried out on the Property. [44] With regards to the interests of each brother in the berry farm the Court stated the following: [8] In my respectful view, it is fundamental to an application under the Partition of Property Act, R.S.B.C. 1996, c. 347 ("PPA"), and indeed has been fundamental from the outset, what interest the person either seeking partition or sale, or resisting partition or sale, has in the Property. In this regard, the state of the title in relation to the Property is significant. Initially, when registration was effected on October 24, 2003, Harminder, Harbans, and Zora were joint tenants. Then, in relation to an application for registration that was entered December 21, 2004, the situation changed. Harminder became a tenant-in-common in relation to an undivided one-third interest, and Harbans and Zora remained as having an undivided two-thirds interest as joint tenants. It is obvious that the parties at that time reconsidered how best the title ought to reflect their interests in the land and their positions vis-à-vis each other. Either at that time or shortly thereafter, but most certainly prior to the present application for partition or sale being initiated by Harminder, the Petitioner, steps, if there were legitimate steps to be taken, could have been taken to address any claimed difference or disputes about who contributed what to the initial purchase of the Property, or indeed, who had what interest in the Property. Despite Harminder's change from joint tenant to tenant in common, each brother has always had a one-third interest. [9] It is simply astounding, in my view, that at this late stage in these proceedings, Harbans, who has been opposed to this application from the outset, comes to Court and says "Oh, I don't really have a one-third interest here as a joint tenant in the undivided two-thirds interest as joint tenants that I share with Zora. I actually have an interest in this Property that approaches 75 percent." [10] This application has been cast in the language that if I do not accede to an adjournment application, a great injustice will potentially be done to Harbans. With respect, I disagree. There is a sound case on the evidence properly before the Court that has evolved over the last six months, with all parties being represented by counsel throughout, which supports an order for sale pursuant to s. 6 of the PPA. The injustice here would be to delay this matter further, given all that has occurred to date. [11] The next thing of fundamental importance is that the Court is not deciding today who is going to get what share of the proceeds of the Property when it is sold. The Court is simply deciding whether the Property can rightfully and lawfully be sold on application by two individuals who claim to have more than a 50 percent interest in the Property, whose claim is borne out by the state of the title. [Emphasis added.] [45] The Court then provided the following background, which is particularly of note in relation to the present costs application, given Harbans' later conduct in terms of blocking a sale by filing the CPL in the ownership and accounting action and then having his son, with two others, make a cash offer for the berry farm to the receiver to try to undercut the offer by Harminder and Zora: [14] This is an application for the sale and division of proceeds of the Property. The application is brought by Harminder against his two brothers, Harbans and Zora. [15] The brothers each have a one-third interest in the Property in question. Specifically, Harminder, as of the title document entered on the December 21, 2004, has an undivided one-third interest, and holds his interest as a tenant-in-common. Harbans and Zora each have an undivided one-third interest in the Property as joint tenants; and as I said in my earlier comments, that title replaces the previous title that saw them all on title as joint tenants. [16] These parties are also parties to a partnership agreement in relation to the "farming of the lands" that comprise the Property at issue in this case. [17] Initially, Harbans and Zora were opposed to this application for sale of the Property brought on behalf of Harminder, as Harbans wished to purchase Harminder's interest and Zora wished to retain his. However, on the eve of the application coming to Court in July 2007, Zora changed his mind and with legal advice, and upon signing an affidavit to the same effect, decided to support Harminder's application for an order of sale of the Property, which was, and still is, opposed by Harbans. [18] At that time, Harminder came forward with a third party, who offered to purchase the Property for $4.8 million. I declined to order the sale of the Property on those terms because I was persuaded by the submissions of Mr. Klassen on Harbans' behalf, and the law, that a more proper course, if the Property was to be sold, was that it be exposed to the open market. [19] The effect of Zora changing his position such that his interests were aligned with those of Harminder, was to change the nature of the Petitioner's application from an application pursuant to s. 7 of the PPA, to an application by parties with more than a half interest in the Property pursuant to s. 6 of the PPA. [20] Although already very late in the day, that would have been the time for Harbans to come forward and say, "Oh, by the way, if he's changing sides and changing his position, I just want to let you know that the real state of affairs here is that I own more than 50 percent of the Property." But this did not happen. [Emphasis added.] [46] The Court then ordered the sale of the berry farm as follows: [40] In the present case, I have no hesitation based on the law, the evidence that I have received, and the submissions that I have heard, as well as the history of this matter and the ongoing nature of the disputes between the Grewal brothers regarding the operation of the berry farm business presently being carried out on this Property that an order of sale pursuant to s. 6 of the PPA must be made, as those with interests that represent more than 50 percent seek such an order, and there is before me no good reason, as that phrase is discussed in the cases referred to above, not to order the sale of the Property and a division of the proceeds. [47] The Court was also called upon to determine whether a partnership between the parties posed an impediment to the sale and concluded that it did not, as it only pertained to the farming business to be carried out on lands of the berry farm. The Court also noted that instead of proceeding to arbitration regarding disputes that had arisen in the context of the farming operation as contemplated by the partnership agreement, Harbans had started a lawsuit, Chilliwack Registry No. S16384 (not the ownership and accounting action and not an action in trial before Crawford J.). The Court also made it very clear to Harbans (at para. 51) that if he wanted to pursue his position that he was entitled to more than one-third of the proceeds of sale, he was to pursue that claim in the proper manner prior to the distribution of the proceeds. [48] A receiver, PricewaterhouseCoopers Inc., was appointed by order of the Court on February 7, 2008 to look after the affairs of the berry farm and conduct its sale. The order specified how and when sealed offers were to be received, that the receiver was permitted to accept one of the sealed offers and prepare a report for the Court, with the list price for the berry farm not to be less than $4,200,000. [49] The receiver sought court approval of the highest offer, one made by Harminder and Zora, which was opposed by Harbans. The Court gave oral reasons on May 2, 2008, portions of which are relevant to the issue of costs: [1] THE COURT: This is my decision in relation to the Grewal matter and the approval that is sought for the sale of the property. [2] This matter has a somewhat protracted history before the court. At present, I am asked to approve a sale as recommended by the court-appointed receiver of the 61-acre berry farm called "Prince Farms" in Langley, B.C. which I will refer to as "the property". [3] The sale for which approval is sought is to the highest bidders, namely, the petitioners, Harminder Grewal and one of his brothers, Zora Singh Grewal. The approval of the same is being opposed by the respondent, Harbans Singh Grewal. [ ] [4] Two competing offers to purchase the property have been analyzed by the receiver and the higher of the two, made by Harminder and Zora, two of the present owners of the property, is recommended to the Court. However, the matter of which offer the Court ought to approve has been hotly contested on behalf of Harbans who seeks the approval of the second, somewhat lower offer, which is, simply comparing amounts, $874,987 less. [5] The second offer would result in an all cash sale and is made by three individuals, one of whom is Harbans' son. [6] There are two issues to be decided at this time. The first is should the Court approve the sale of the property as recommended by the receiver to those presenting the highest offer, Harminder and Zora, as the best and most provident offer in all the circumstances? In this regard, does the fact that the second highest offer, by parties apparently unrelated to the ongoing litigation, is all cash militate for its acceptance over the highest offer? I note that the highest offer would result in Harminder and Zora in effect buying out Harbans and continuing to own and operate the berry farm on the property. [7] The second issue is that in the event that the Court approves the sale of the property to Harminder and Zora, ought the Court to order that the Certificate of Pending Litigation ("CPL"), recently registered against the property in New Westminster Action No. S110167 commenced by Harbans against Harminder and Zora, be lifted and then reinstated to permit Harminder and Zora to mortgage the property to facilitate payment to Harbans for his one-third interest? [Emphasis added.] [50] After setting out a brief history of the dispute, the Court noted the commencement by Harbans, six days after the order for sale was made, of the ownership and accounting action that eventually went to trial before Crawford J.: [15] On December 13, 2007, Harbans commenced a separate action, New Westminster Action No. S110167 against Harminder and Zora in which, according to the statement of claim filed January 28, 2008, Harbans claims an equitable interest in the property in excess of his one-third legal interest and he claims that interest in relation to the present interests of Harminder and Zora. He has caused a CPL to be filed in relation to the property, No. BB0200428, which, in turn, impacts upon the offer that Harminder and Zora have made in these proceedings to purchase the property. [Emphasis added.] [51] The Court engaged in a detailed analysis of the receiver's report in light of the submissions of counsel and concluded as follows: [23] The Grewal and Grewal offer requires Harminder and Zora to obtain a mortgage in the amount of $2,400,000 to complete the sale, which would consequently reduce the continuing security on the property afforded by the CPL from $4,177,000 to $1,777,000, resulting in -- and these are his terms -- "estimated cash and security on land available to Harbans Singh Grewal" of $3,105,000" (in his earlier report: $3,015,000), whereas in relation to the Sidhu, Sidhu and Singh offer and taking into account deductions of the same costs, except as to the realtor's commission and without any financing, the result is an "estimated cash and security on land available to Harbans Singh Grewal" in the amount of $3,110,738 (in his earlier report: $3,020,738). [24] When estimating the "continuing security on land by CPL BB0200428 less the prior ranking mortgage" Mr. Pallen notes in the report that "This is based on the estimated market value based on the average of offers received excluding the highest and lowest offers", the highest being the Grewal and Grewal offer. Therefore, prudently, he has not taken into account the highest offer made by Harminder and Zora in estimating the market value he used to estimate the cash and security available to Harbans in relation to his newly-commenced action. [25] An issue has arisen as to the realtor's commissions payable on either offer, given that the receiver negotiated a lesser rate on offers made by the present owners of the property that is apparently not available to the offer made by Sidhu, Sidhu and Singh, although it was disclosed after the second highest offer had been presented that the "Parbvir Singh" referred to in that offer is in fact Harbans' son, Parbvir Singh Grewal. However, I note that even assuming the realtor's commission payable in relation to the Sidhu, Sidhu and Singh offer upon sale was the lower figure of $20,000, the offer made by Harminder and Zora is still the highest offer. [26] I accept the submissions of counsel for Harminder that assuming for the moment that Harbans' claim to the property as advanced in Action S110167, if he were to be successful, entitles him to 74.5 percent of the combined interests of the three brothers, then the estimated cash surplus in relation to the offer to purchase made by Harminder and Zora as noted by the receiver is $1,328,000 (in his earlier report: $1,238,000), which could be paid to Harbans immediately, and his continuing CPL would provide him with additional security by way of a hold over the property. [27] The sale of the property based on the Sidhu, Sidhu and Singh offer would result in an estimated cash surplus amount of $3,110,738 (in his earlier report: $3,020,738), of which one-third or $1,036,912 would be payable to Harbans. It is anticipated that Harbans would seek to tie up the same amount payable to Zora and a portion of the same amount that would otherwise be payable to Harminder. [28] The related calculations in the submissions of Harminder's counsel estimate that the amount of cash Harbans will be able to have paid into court were the Sidhu, Sidhu and Singh offer to be accepted is still less than the amount available to him if the higher offer from Harminder from Zora was approved by the Court. [30] At bottom, I conclude that the information before the Court, analyzing the two competing offers, supports the conclusion that the highest offer is also the best offer for all three of the present owners of the property, given their present interests. [Emphasis added.] [52] In these reasons the Court noted that counsel for Harbans tried unsuccessfully to file submissions after the deadline for submissions imposed on all counsel, to challenge whether the receiver had acted in breach of his fiduciary duty. Counsel for Harbans also raised the issue of whether a "more local" receiver would have been more appropriate, although he had consented earlier to the appointment of the receiver. [53] After considering the applicable law, the Court concluded as follows: [49] Applying these principles to the issue at hand, namely, whether the proposed sale of the property to Harminder and Zora ought to be approved by the Court, I find the following to support approval of the sale to Harminder and Zora based on the terms of their offer: 1. Their offer is the highest offer in terms of getting the highest price for the property, which is an outcome that Harminder and Zora as well as Harbans are entitled to as co-owners of the property. 2. While Harbans proceeds in Action No. S110167 with his claim in equity over portions of Harminder and/or Zora's interest in the property as the law permits, those proceedings and the CPL arising from them ought not in fairness preclude Harminder and Zora from buying the property as the successful litigants in the present proceedings pursuant to the PPA. 3. This is particularly so given that s. 2(2) of the PPA permitted any equitable claims that Harbans had in relation to the property over and above his one third interest to be determined in this proceeding. 4. Not only are owners of property subject to proceedings being taken under the PPA not barred from bidding on the property that is the subject matter of the proceeding, but s. 10 expressly permits them to bid on terms that may include the "non-payment of deposit, or setting off or accounting for the purchase money instead of paying it, or as to any other matter that seems reasonable to the court". Therefore, I find that Harminder and Zora's offer to purchase the property in which they each have a one-third legal interest, and the corresponding equitable interest as matters stand, is not to be regarded as a less provident offer simply because they hold their respective interests in the property itself, as opposed to in cash, thus causing them to have to obtain some financing. 5. The payment of cash to Harbans equal to his one-third interest in the property, based on the highest offered price for the property, is fair and just to all parties in the present proceedings. 6. The fact that the proposed sale will result in a CPL continuing to be registered on the title of the property after the proposed mortgage is obtained by Harminder and Zora and registered with first priority, based on the present analysis of the receiver, does not render the proposed sale improvident or unwise, and thus, neither the CPL nor the increased mortgage ought to preclude Harminder and Zora from becoming the court-approved purchasers of the property. 7. There is an additional recognized social and legal benefit in the Court approving the sale of the property to Harminder and Zora, as proposed by the receiver. It is a fair and concrete step towards ending the protracted litigation and multiple proceedings spawned by the joint endeavour of the three Grewal brothers to own and operate the berry farm at Prince Farms. 8. In terms of the integrity of the court's process and the circumstances of the court-ordered sale, the non-disclosure of the real identity of the "Singh" in the Sidhu, Sidhu and Singh offer until after the receiver had analyzed the bids casts some doubt on the integrity of that offer. [Emphasis added.] [54] In the same reasons the Court considered whether, in the partition proceedings, the Court could order that the CPL filed by Harbans in the ownership and accounting action should be lifted and then reinstated to permit Harminder and Zora to obtain a mortgage to complete their proposed purchase of the berry farm. The Court concluded: [64] In the result, I find that pursuant to s. 256(3) of the LTA, Harminder and Zora are required to make an interlocutory application in Action No. S110167 for an order cancelling the registration of the CPL and then seeking its reinstatement, if they so wish. [65] As I appreciate that this is a pressing and somewhat urgent matter and I am familiar with the matters at issue between these parties, I order that this interlocutory application be heard before me, with all further and other proceedings in Action No. S110167 to be dealt with by the assigned case management judge in the usual course. As time does not really permit it this morning, I conclude by saying that if the parties prepare brief written submissions as to costs I will address that issue at that time. [Emphasis added.] [55] Shortly thereafter Crawford J. became involved in the actions that went to trial before him, including the ownership and accounting action (S110167 referred to above), except the application to lift the CPL to permit the sale of the berry farm to Harminder and Zora came before me. [56] In oral reasons for judgment dated June 20, 2008, the Court set out what was at issue: [2] This is an application by the defendants, Harminder Singh Grewal ("Harminder") and Zora Singh Grewal ("Zora"), to remove the Certificate of Pending Litigation BBO200428 (the "CPL") recently filed by their brother, Harbans Singh Grewal ("Harbans"), against a 61-acre berry farm in Langley known as "Prince Farms" (the "lands"). This application to cancel the CPL is brought pursuant to s. 257(1)(a) of the Land Title Act, R.S.B.C. 1996, c. 250 ("LTA"). [3] The defendants seek an order from the court cancelling the CPL to permit them to obtain a mortgage sufficient to facilitate their purchase of Harbans' interest in the lands, pursuant to an order made on December 7, 2007 by the court in another proceeding, namely Chilliwack Action S17239 brought under the Partition of Property Act, R.S.B.C. 1996, c. 347 ("PPA"). [4] The defendants consent to the reinstatement of the CPL immediately thereafter to afford Harbans what they submit is sufficient security until this lawsuit is resolved. They also offer, as additional security, $375,000, which represents their collective two-thirds share in the proceeds of the 2007 berry harvest on the lands. [57] The following was said about the nature of Harbans' claims in the ownership and accounting action and the CPL he had filed, which was preventing the court-ordered sale of the berry farm to Harminder and Zora: [5] Having previously asserted a one-third interest in the lands in Action S17239, and having been the unsuccessful party in that action insofar as the court ordered a sale of the lands based on Harminder and Zora holding a total of a two-thirds interest in the lands, the plaintiff now claims in the present action a total interest of 74.5% in the lands, comprised of his one-third interest, (33.3%), as well as all of Zora's interest (33.3%), and 7.9% of Harminder's one-third interest (33.4%) based on a resulting trust. [6] In this action commenced by writ of summons filed December 13, 2007, by his statement of claim filed January 28, 2008, the plaintiff also seeks the return of approximately $570,500 he claims to have contributed to the Prince Farms partnership. In addition, the plaintiff claims the appointment of a manager to manage the lands, a CPL (that he subsequently obtained), and an order granting him conduct of the sale of the lands that permits him to bid on the lands. [7] Counsel for the defendants submit that the plaintiff has commenced this action to frustrate the order of the court in Action S17239 that approved the sale of the lands to them, based on the terms of their offer to purchase, as accepted by PricewaterhouseCoopers Inc. (the "receiver"), after exposure to the open market, and subject to court approval, which was granted on May 2, 2008. The defendants submit that the plaintiff's claim to more than a one-third interest to the lands at this late date has little or no merit. They submit it runs contrary to the interests of the brothers of one-third each as recorded on the title at the time of purchase, and as formed the basis in Action S17239. Further, they submit that the claims the plaintiff now makes cannot be supported on the evidence upon which the plaintiff purports to rely. They submit that the oral agreement that the plaintiff claims to have made with Harminder and Zora as to the brothers holding disproportionate interests in the lands in the plaintiff's favour did not occur, and ultimately the matter will be decided on the credibility of the parties at trial should the case proceed. [8] Also included in the defendants' submission is that the plaintiff is asserting in this action a right inconsistent with his past assertions as to his interest in the lands made in other legal proceedings, including assertions in Action S17239. [Emphasis added.] [58] The Court made the following comments about the CPL: [17] In this case, I find that Harbans, the plaintiff in the present action, through the CPL filed, is seeking to do indirectly what he has been to date unsuccessful in doing directly - forcing his two brothers to fail in their offer to purchase the lands as holders of a two-thirds interest and facilitate the sale of the lands to those offering significantly less for the property (one of whom is his son) via the all cash offer. [Emphasis added.] [59] Again, the Court analyzed the security that would remain on the berry farm after a reinstated CPL as follows: [16] Based on the receiver's calculations in relation to the offer to purchase by Harminder and Zora, taking into account the purchase price of $5,406,000, less the estimated cost of the receivership ($150,000), the realtor's commission ($20,000), and the discharge of the present mortgage ($1,157,000), the estimated cash surplus from the sale is $1,328,000 which, when combined with the estimated remaining security for a reinstated CPL on the lands of $1,777,000 after a new first-ranking mortgage of $2.4 million, amounts to an estimated cash and security on the lands available to the plaintiff of $3,105,000. [19] It is important to note that the defendants are offering a security to the plaintiff by way of a reinstated CPL, analyzed by the receiver to be sufficient. They simply seek to increase the mortgage on the lands to enable themselves to purchase the plaintiff's interest in the lands based on the highest offer for the lands after exposure to the open market as approved by the court. [Emphasis added.] [60] In considering what security ought to be appropriate in the context of lifting the CPL, the Court also commented upon the continuing ill-founded and circuitous efforts of Harbans to block the sale of the berry farm to Harminder and Zora: [24] In deciding what security is proper in the circumstances I am of the view that damages will provide adequate relief to the plaintiff. He has through his counsel been making submissions in support of the second highest all cash offer for the lands, and I note, by virtue of his notice of appeal filed in Action S17239, that he states he is appealing an order pronounced on February 1, 2008, "except that portion granting the sale of the lands partition of which was in issue". I also note that in the present action he seeks to have conduct of the sale, control of the management of the farming operation of the lands, and to be at liberty to bid on the property himself, all of which have been dealt with in court applications in Action S17239. To the extent that the plaintiff now seeks to revisit the issue of the sale of the lands it should be by way of an appeal in Action S17239. [Emphasis added.] [61] The Court also reviewed Harbans' overall likelihood of success in the ownership and accounting action: [29] I find it appropriate to consider the plaintiff's likelihood of success in this action because to maintain the CPL as security for the claims that Harbans advances, or to require the posting of security beyond the resources that Harminder and Zora have available to them, will cause considerable hardship, inconvenience and expense to the defendants, and serve to frustrate a prior order of the court. In doing so I am mindful that the trial process by its very nature sometimes produces unexpected results, but insofar as there are indicia of success or lack thereof to weigh, I would be remiss in the context of this application to fail to do so. [30] The plaintiff has put forward a series of bank records, cheques and other documents related to the purchase of the lands that appear to show that he made contributions towards the initial purchase price of the lands in excess of one-third. Some of them relate to joint accounts held with Zora, and others relate to entries in partnership accounts. The plaintiff asserts that once his disproportionately higher contribution was recognized, the defendants agreed orally to adjust their legal interests in the lands accordingly. [31] He has also produced other documents that show he made certain financial contributions to the partnership and the berry-farming operations that he claims exceed those of his brothers. [32] He has produced affidavits of a sister that support his claim that it was a family practice to put names of family members on title without any regard to their actual contribution; and that neither the defendant Zora, as an illiterate labourer, and without a facility in English, nor Zora's wife, made any contribution whatsoever to the residential property used as security for the loan of funds necessary to purchase the lands. [33] The plaintiff claims that it is the fault of his previous lawyer that he did not advance his claim to having more than a one-third interest in the lands earlier. [62] With regards to Harbans' likelihood of success, the Court commented as follows: [39] I consider the plaintiff's probability of substantial success to be low, and that the present action may constitute an abuse, and I reflect this in the amount of security required. [Emphasis added.] [63] The outcome was that the CPL Harbans had placed over the berry farm in relation to the ownership and accounting action was cancelled on the posting of $375,000 security by Harminder and Zora, and Harbans was given the option of re-registering the CPL over the berry farm on the terms specified once the berry farm had been transferred to Harminder and Zora. The effect of the order was stayed for five days to give Harbans an opportunity to pursue an appeal, which he did. [64] On June 27, 2008, in the Court of Appeal, Mr. Justice Chiasson considered Harbans' application to stay this order and commented that it was likely that leave to appeal was required and had neither been sought nor granted. Harbans was advancing a claim in the action that totalled $2,290,000, comprised of $1,730,000 that Chiasson J.A. characterized as "an equitable claim", plus a claim of $560,000 that Harbans said was put into the berry farm property by way of cash (at para. 8). Chiasson J.A. assessed the merits of the appeal as weak (at para. 6) and declined to order a stay of the order made by the Court on June 20, 2008. [65] On January 16, 2009, the Court dealt with a number of applications regarding the payment out to Harbans and seeking security for costs for Harminder and Zora. Various orders were made, costs applications on behalf of Harminder and Zora were adjourned and reasons for judgment regarding security for costs adjourned to January 23, 2009. [66] In oral reasons for judgment on January 23, 2009 the Court declined to provide the relief sought on behalf of Harminder and Zora. Among other things Harminder was seeking an order that the receiver withhold payment to Harbans of certain funds as security for future costs awards against him in favour of Harminder. Mr. Holeksa, who had been discharged as counsel by Zora (on what turned out to be a temporary basis), was seeking to pursue costs on behalf of his then former client by applying for a charge against funds frozen by any potential injunction issued by the Court on the basis of s. 79(1) of the Legal Professions Act. The Court found that section did not permit a charge to be placed against funds properly owing to Harbans as a result of the sale of his interest in the berry farm. The Court also declined to grant a Mareva injunction, but left it open for counsel for Harminder and Zora to place further information before the Court that Harbans was likely to dissipate assets in this jurisdiction to avoid payment of an order for costs in these proceedings or had a history of non-payment of court orders beyond that placed before the Court. The Court ordered payment out to Harbans but delayed the order to February 16, 2009, to permit counsel to consider an appeal. [67] When the parties appeared before the Court on February 10, 2009, for which there is a transcript, Mr. Perry, counsel for Harbans at that time, objected to any further delay in the payment out of funds to Harbans. Counsel had discussions about a future date for a renewed application by Harminder and Zora to seek to hold the funds as security for costs, an avenue left open to them arising from the judgment on January 23, 2009. Mr. Perry decided that he would not be able to put any materials before the Court prior to the trial of the ownership and accounting action (currently being managed by Crawford J.) and agreed that the Court should settle the terms of the order arising from the January 23, 2009 reasons, and in the event a further hearing was required counsel would seek a date in April 2009. [68] As a result of the terms of the order arising from the January 23, 2009 reasons, $340,000 continued to be held by Singleton Urquhart as security for costs payable by Harbans to Harminder and $105,000 was held for the same purpose in relation to Zora. Brief Summary of the Relevant Law [69] The Rules, specifically R.14-1(1) and R. 14-1(15), confer upon the Court the jurisdiction to award costs of a proceeding that relate to an application, step or matter taken in a proceeding, and to fix an amount for costs and disbursements. Rule 14-1(9) provides that "costs of a proceeding must be awarded to the successful party unless the court otherwise orders." [70] The law in relation to costs is generally settled and the Rules and the present case law apply. I will briefly set out the basic law upon which I rely. Costs at Scale C [71] Costs at Scale C are reserved for matters of "more than ordinary difficulty." [72] In Cruise Connections Canada v. Cancellieri, 2013 BCSC 1, Mr. Justice Pearlman set out the relevant portions of the Rules and the relevant law to be considered when determining the degree of difficulty of a matter as it impacts upon the scale of costs to be awarded: [28] Under the Supreme Court Civil Rules, Appendix B, ss. 2(2) and 3(1), costs may be awarded on one of three scales: (a) Scale A for matters of little or less than ordinary difficulty, at $60 per unit; (b) Scale B for matters of ordinary difficulty, at $110 per unit; and (c) Scale C for matters more than ordinary difficulty, at $170 per unit. [29] Section 2(3) of Appendix B provides that the court may take into account the following factors in fixing the appropriate scale: (a) whether a difficult issue of law, fact or construction is involved; (b) whether an issue of importance to a class or body of persons, or as a general interest; (c) whether the result of the proceeding effectively determines the rights and obligations as between the parties beyond the relief that was actually granted or denied. [30] In Mort v. Saanich School Board No. 63, 2001 BCSC 14 at paras. 5 and 6, the court identified the factors relevant to determining the difficulty of a matter as including: (a) the length of the trial; (b) the complexity of the issues involved; (c) the number and complexity of pre-trial applications; (d) whether or not the action was hard fought with little or nothing being conceded along the way; (e) the number and length of examinations for discovery; (f) the number and complexity of experts' reports; and (g) the extent of the effort required in the collection and proof of facts. [73] In Malik v. State Petroleum, 2009 BCSC 132, Mr. Justice Burnyeat considered the factors that supported an award for costs under a higher scale pursuant to the previous Rules of Court and whether they continued to be applicable under the new costs regime. He concluded they did and noted: [4] The decision in Lewis v. Abel, [2008] B.C.J. (Q.L.) No. 187, allows me to look at previous decisions dealing with the previous Scales of Cost that were in effect. In doing so, I am satisfied that those decisions continue to set out the range of factors which I can look at in determining the question Scale of Costs, even though those decisions relate to decisions as to whether Scale 3, 4 or 5 were appropriate. [5] I refer specifically to the decision in 566953 B.C. Ltd. carrying on business as West Coast Resort and Allianz Insurance Co. of Canada, [2005] B.C.J. (Q.L.) No. 2759. Relying on a number of decisions, Parrett J. in paragraph seven, states that the following factors were to be considered on the application that costs be assessed on a Scale 4 basis; the length of the trial, the complexity of issues, the number and complexity of pre-trial applications, whether the matter was hard fought, the number and length of examinations for discovery, the number and complexity of expert reports, and the extent of effort required in the collection of and proof of facts. [74] This was also the conclusion reached in Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2010 BCSC 1494, in which Mr. Justice McEwan stated: [5] Recent changes to the scale of costs has not rendered past decisions obsolete. Under the previous scale the court had developed a series of seven considerations to guide its discretion. (See 566935 B.C. Ltd. v. Alliance Insurance Co. of Canada, 2005 BCSC 1759). These were adopted in Lewis v. Abel, 2008 BCSC 149, and Malik v. State Petroleum Corp., 2009 BCSC 132 as applicable to the new scale. The material difference between the two is that scales 4 and 5 have been merged in Scale C. "Matters of more than ordinary difficulty" now includes the old Scale 4, which was previously described in precisely those terms, and Scale 5, which was previously reserved for a higher category of "matters of unusual difficulty." The change eliminates a subtlety that, like the distinction between "unreasonable" and "patently unreasonable", sometimes encountered in another context, may be more metaphysical than practical. [6] Applying Lewis and Malik, the following factors continue to be relevant: (a) Length of trial; (b) Complexity of issues; (c) Number and complexity of pre-trial applications; (d) Whether or not the action was hard-fought with little or nothing conceded along the way; (e) The number and length of examinations for discovery; (f) The number and complexity of expert reports; (g) The extent of the effort required in the collection of and proof of the facts. [7] In 566935 B.C. Ltd. the Court had summarized the principle relevant to the higher scale as follows: To justify an award of costs on Scale 4, the trial judge must find either that the action involves legal issues of more than ordinary importance, or that the gathering of the facts and the relevant law involved more than ordinary difficulty. Either finding may support such an award. Increased or "Uplifted" Costs [75] The Court is permitted to award increased or "uplifted" costs that increase the value of a unit of costs assessed under Scales A, B, or C of s. 2(2) of Appendix B. This is available pursuant to ss. 2(5) and (6) of Appendix B of the Rules, which state: (5) If, after it fixes the scale of costs applicable to a proceeding under subsection (1) or (4), the court finds that, as a result of unusual circumstances, an award of costs on that scale would be grossly inadequate or unjust, the court may order that the value for each unit allowed for that proceeding, or for any step in that proceeding, be 1.5 times the value that would otherwise apply to a unit in that scale under section 3 (1). (6) For the purposes of subsection (5) of this section, an award of costs is not grossly inadequate or unjust merely because there is a difference between the actual legal expenses of a party and the costs to which that party would be entitled under the scale of costs fixed under subsection (1) or (4). [Emphasis added.] [76] As to when an award of increased costs may be appropriate and the distinction between increased costs and special costs the comments of Madam Justice Allan in 380876 British Columbia Ltd. v. Ron Perrick Law Corp., 2009 BCSC 1209, are instructive. [77] In Perrick, Allan J. considered the factors that influence whether an award of ordinary or increased costs at Scale C was warranted: [37] The next question is whether an award of ordinary costs at Scale C would be grossly inadequate or unjust because of "unusual circumstances". Factors which may constitute such unusual circumstances and justify increased costs include the following: · Misconduct by the unsuccessful party in the litigation: Gary Young Agencies Ltd. v. McComber, 2008 BCSC 143; Rieta v. North American Air Travel Insurance Agents Ltd. (1998), 52 B.C.L.R. (3d) 114 (C.A.); Monenco Ltd. v. Commonwealth Insurance Co., 1999 BCCA 133; and National Hockey League v. L.A. Kings (1995), 2 B.C.L.R. (3d) 13 (C.A.); · The serious nature of the allegations: Future Shop Ltd. v. Northwest-Atlantic (B.C.) Broker Inc. et al, 2002 BCSC 58; · The complexity or difficulty of the issues in the litigation: Monenco; and · The importance of the litigation to the parties or to the development of the law: Monenco. [38] In National Hockey League, at paras. 32 and 33, the Court of Appeal distinguished between special and increased costs: Misconduct may lead either to an award of increased costs or, where increased costs would in any event be appropriate, to an award amounting to a higher proportion of special costs than would otherwise have been the case. In neither case is the result intended to punish the offending party. Punishment is a primary function of the discretion to award special costs, a discretion which may only be exercised when the conduct in question can properly be regarded as at least reprehensible. Increased party and party costs are intended as an indemnity: Bradshaw Construction Ltd. v. Bank of Nova Scotia . But where one party to an action is guilty of misconduct in the litigation, and the innocent party is required to spend time and effort responding to such conduct, in most cases it would be unjust if the latter was not adequately indemnified for the costs associated with defending against that which should never have happened. It is in that sense that, whether reprehensible or not, the misconduct of one party is relevant when a court is considering or exercising the discretion to award increased costs to the other. [Emphasis added.] [78] In Perrick, Allan J. concluded because of misconduct during the trial, which included the adducing of false and misleading affidavits, an award of increased costs at Scale C was appropriate. [79] Having awarded Harminder and Zora special costs in relation to the part of the trial that related to the berry farm ownership issue, Crawford J., having determined that costs at Scale C were appropriate for Harminder and Zora as the successful parties in relation to the berry farm accounting, considered whether they were entitled to an uplift of 1.5 per unit of Scale C costs. He noted: [16] While I find subsections 2(5) and (6) to be somewhat contrary, I repeat Allan J.'s observation in Perrick, that there is a large disparity between the party and party costs at Scale C and the potential legal fees showing in the legal bills of Harminder and Zora Grewal. [17] And when one turns to consideration of unusual circumstances which may include misconduct of the unsuccessful party, complexity or difficulty of issues and importance of litigation to the parties, there seems some duplication in the consideration of special costs or increased costs. However, those factors are here in terms of misconduct on the allegation of trust, the difficulties of issues in the litigation and the importance of the litigation to the parties. However, those factors were taken into account in consideration of the awarding of Scale C costs. Special Costs [80] The law on special costs is founded on the party against whom costs are being assessed as having engaged in conduct that is reprehensible, a term which has been interpreted to encompass scandalous or outrageous conduct, but also milder forms of misconduct deserving of reproof or rebuke: Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242, [1994] B.C.J. No.2486 (C.A.). [81] Also worthy of note in the context of the present proceedings is the following quote from Garcia: 25 If the proceedings are taken, not in the reasonable expectation of a satisfactory outcome, but in order to impose the burden of the proceedings themselves on the opposing party in circumstances where one party is much stronger than the other, then the absence of merit, coupled with the improper motive, is in my opinion a combination which may well amount to reprehensible conduct sufficient to require an award of special costs. [82] The conduct of Harbans, in terms of his filing a CPL against the berry farm in the ownership and accounting action that turned out to be without merit and was commenced after the order of sale had been made in the partition action, is submitted to be similar to that of a party named Campa in Graham v. Moore Estate, 2002 BCSC 1659, where Mr. Justice Melnick commented as follows: [12] It is clear to me that a very substantial amount of the time expended by all of the parties in this litigation since late last year when they first appeared before me has been with respect to the alleged March 29 agreement and the alleged bidding agreement. While a party is always entitled to vigorously pursue his or her legal rights, Mr. Campa's conduct of this litigation has left me with the impression, at least in relation to the plaintiffs, that it was pursued in a manner designed to drive up their costs to discourage them from pursuing the enforcement of their contract to purchase the property. [13] In my view, Mr. Campa's conduct of this litigation with respect to the plaintiffs is deserving of rebuke. [14] While it was not unreasonable for Mr. Campa to pursue a claim based on the April 2 agreement which was signed by Mr. Moore, in my view that was an issue which could, and should, have been determined expeditiously, and at a reasonable cost. I therefore award the plaintiffs special costs against Mr. Campa. In these circumstances, I define special costs as being 90% of their actual solicitors' fees and disbursements. [83] On appeal in Graham et al. v. Moore et al., 2003 BCCA 497, Mr. Justice Donald writing for the Court of Appeal upheld the award of special costs as against Mr. Campa but reduced the costs awarded to the executor of the estate, Mr. Moore, from special costs to costs, stating that "since he contributed to the problem at the early stages, I think it was an error in principle to provide him with such a generous indemnity" (at para. 42). [84] Mr. Justice Donald also considered whether costs ought to have been assessed by a registrar rather than by the trial judge and whether Mr. Campa had been deprived of the procedural protections of a registrar's hearing where he would have had an opportunity to challenge various items in the lawyer's bill. In upholding the decision of Melnick J. to fix the amount of special costs payable by Campa, Donald J.A. found (at para. 45) that "The Registrar's hearing would have involved more litigation in a losing cause; a problem that underlies all of Mr. Campa's process arguments." He also stated: [46] It is well settled that a trial judge has the authority to determine the quantity of the award although it is a power to be exercised sparingly: Harrington v. Royal Inland Hospital (1995), 131 D.L.R. (4th) 15 (B.C.C.A.). As in Harrington, the trial judge in the present case did not want to burden the parties with the task of acquainting the Registrar with the complexities of the case when he was fully familiar with all aspects of it. [85] In Mayer v. Osborne Contracting Ltd., 2011 BCSC 914, Mr. Justice Walker summarized the law relating to special costs at paras. 8 to 10 and then set out a list of circumstances that may attract special costs. Walker J. noted: [11] Special costs may be ordered in the following circumstances: (a) where a party pursues a meritless claim and is reckless with regard to the truth; (b) where a party makes improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of fiduciary duty; (c) where a party has displayed "reckless indifference" by not recognizing early on that its claim was manifestly deficient; (d) where a party made the resolution of an issue far more difficult than it should have been; (e) where a party who is in a financially superior position to the other brings proceedings, not with the reasonable expectation of a favourable outcome, but in the absence of merit in order to impose a financial burden on the opposing party; (d)[sic] where a party presents a case so weak that it is bound to fail, and continues to pursue its meritless claim after it is drawn to its attention that the claim is without merit; (e) [sic]where a party brings a proceeding for an improper motive; (f) where a party maintains unfounded allegations of fraud or dishonesty; and (g) [sic] where a party pursues claims frivolously or without foundation. See: Garcia at 748; International Hi-Tech at paras. 7-13; Webber v. Singh, 2005 BCSC 224 at para. 28; McLean v. Gonzalez-Calvo, 2007 BCSC 648 at paras. 26, 29; Buchan v. Moss Management Inc., 2008 BCSC 1286 at paras. 11-12; and Edwards v. Bell, 2004 BCSC 399 at paras. 12, 43-45. [Emphasis added.] Analysis and Findings [86] The Court's views regarding costs in relation to this lengthy, complicated, costly litigation related to the berry farm property are fairly simple. Harminder's Claims for Costs [87] I find that Harminder, as the substantially successful party in both the partition action and regarding title to the berry farm as adjudicated in the ownership and accounting action, is entitled to costs at Scale C payable for all proceedings up to and including my reasons for judgment on December 7, 2007. The hard-fought battle about control of the berry farm during the 2007 harvest manifested itself in the five applications that preceded my oral reasons on December 7, 2007. During that time the Court was required to address issues related to the management, harvest, supervision, finances in terms of income and expenses, and whether the offer from a third party to purchase the farm was prudent. [88] While this matter was not yet at the full hearing or trial stage, the hearings were protracted, factually complicated, and hard fought by Harbans, who in the earlier stages had the support of Zora. Detailed evidence was required to be collected on many issues over a period of about six to seven months prior to December 2007 to ensure an orderly harvest of the valuable crops and preserve the proceeds and the value of the farm as a producing farm. I find Harminder is entitled to costs at Scale C for proceedings of "more than ordinary difficulty" based on the applicable factors set out in Mort v. Saanich School Board No. 63, supra, as articulated in Cruise Connections Canada v. Cancellieri, supra. [89] For this period I decline to award increased or uplifted costs pursuant to s. 2(5) of Appendix B because up to the point of December 7, 2007, apart from Zora changing his allegiance, nothing particularly unusual had occurred so as to render Scale C "grossly inadequate or unjust." On December 7, 2007, the Court did not adjourn its decision and ordered the sale of the berry farm, despite Harbans changing his position to assert an interest greater than one-third. [90] However, the complexion of the partition action changed dramatically after December 7, 2007. Despite the court order for sale, Harbans became determined to tie up the berry farm in perpetual litigation over claims that he was entitled to more than one-third of its proceeds. His first step was to commence another action - the ownership and accounting action - and have a CPL placed on the property. Thereafter, he attempted to frustrate the sale of the berry farm through the court-ordered receiver and actively support an all cash offer that turned out to include his son as one of the three proposed purchasers in that bid; his son having conveniently left his last name off the offer, presumably so as not to alert the receiver, counsel and the Court of his connection to Harbans. When Harbans disagreed with the receiver's report, through his counsel he pressed for a "more local" receiver, despite having consented to the appointment of the receiver initially. Then he sought to make submissions without proper notice that the receiver was in breach of his fiduciary duty. Had Harbans taken a more measured and rational approach to the court-ordered sale it is unlikely that the prolonged and costly involvement of a court-appointed receiver would have been necessary at all. [91] When the Court approved the sale of the berry farm to Harminder and Zora in accordance with the receiver's report rating that offer as the best offer, Harbans shifted his focus. He instructed counsel to block the lifting of the CPL. In my view he did this in order that his brothers' effort to secure the financing necessary to purchase the berry farm would fail. It is worth noting in this regard that Harminder and Zora's offer was the best of five offers received by the receiver. Their quest for financing did not impact the cash he was to receive for his share. To the contrary it was necessary to pay him out. The open market had been tested. The individuals who wanted to pay the most for the berry farm were Harminder and Zora, followed by the cash offer by three individuals, including Harbans' son, which was approximately $875,000 less. [92] Even though substantial security was offered to Harbans, as was an opportunity to replace the CPL to protect his interests after Harminder and Zora obtained the mortgage they needed, Harbans continued to oppose the lifting of the CPL. When the Court granted the relief sought on behalf of Harminder and Zora he sought a stay of the order in the Court of Appeal pending appeal, which was unsuccessful. Thereafter, he litigated his enhanced claim for a share of the sale proceeds of the berry farm in excess of his one-third interest at trial in front of Crawford J., combined with multiple other claims. Crawford J. specifically found that the oral conversations Harbans claimed to have had to support a larger interest in the berry farm property had not occurred. At the end of the day not only was Harbans' completely unsuccessful regarding his claim to more than a one-third interest in the berry farm but his conduct drove the costs of the litigation into the stratosphere for his brothers, particularly for Harminder who has carried the heaviest legal burden from the outset. He was warned along the way by the Court that his path may prove unwise and expensive. However, he remained undeterred. [93] As Mr. Holeksa commented, Harbans could have presented affidavit evidence in the partition action following the order of sale made December 7, 2007, and his claim to an increased share could have been adjudicated in an expedient and cost-effective fashion. This reasonable way of proceeding stands in stark contrast to the reality of what occurred. [94] In my view the conduct of Harbans after December 7, 2007, in relation to the matters that proceeded before me has been reprehensible, verging on scandalous and outrageous. It is certainly conduct worthy of rebuke by the Court. In considering the claims for special costs advanced on behalf of Harminder and Zora I find it useful to briefly assess Harbans' conduct taking into account the various circumstances enumerated in Mayer v. Osborne Contracting Ltd., supra. 1st Mayer circumstance: where a party pursues a meritless claim and is reckless with regard to the truth [95] Harbans was warned in the Court's reasons on December 7, 2007 that his claim to a greater share of the berry farm than the one-third reflected on title was weak and advanced late in the day. Eventually, Crawford J. found against Harbans in terms of his claim to be entitled to more than a one-third interest in the berry farm: September 2, 2011 oral reasons for judgment, paras. 59, 60, 66 and 67. Crawford J. specifically rejected Harbans' evidence that he had a conversation with Zora in which they agreed Harbans owned a greater share (at para. 65). To the extent he pursued his expanded claim he was being untruthful. 2nd Mayer circumstance: where a party makes improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of fiduciary duty [96] In the course of proceeding relating to the receiver and the offers received to purchase the berry farm, Harbans sought unsuccessfully to allege the receiver was in breach of its fiduciary duty: May 2, 2008, oral reasons for judgment, paras. 37 and 39. 3rd Mayer circumstance: where a party has displayed "reckless indifference" by not recognizing early on that its claim was manifestly deficient [97] Harbans failed to heed judicial warnings that his claim was manifestly deficient: December 7, 2007, oral reasons for judgment, paras. 8, 9 and 20. He also continued to assert in the ownership and accounting action that the partnership agreement governed the berry farm land despite a clear finding to the contrary: December 7, 2007, oral reasons for judgment, para. 43. He also failed to heed the later judicial warning that he was unlikely to succeed in relation to being entitled to more than a one-third interest in the proceeds of sale from the berry farm and that advancing this claim in the ownership and accounting action may constitute an abuse of process: June 20, 2008, oral reasons for judgment, paras. 39, 47 and 48. Conducting himself as he did, Harbans showed a fundamental disrespect for the Court and drove up the cost of this litigation. 4th Mayer circumstance: where a party made the resolution of an issue far more difficult than it should have been [98] These proceedings are replete with examples where Harbans made the resolution of issues far more difficult than they should have been. They include: his last minute application to adjourn on December 7, 2007; his delay of matters from September 2007 to December 2007 to retain new counsel, which he then did just prior to when he sought the adjournment denied on December 7, 2007; his steps to frustrate the order of sale by the Court that included starting the ownership and accounting action and filing the CPL, instead of pursuing the correct course of an appeal of the decision in the partition action; his resistance of the receiver appointed by the Court; his opposition to the lifting of the CPL, made all the more difficult because of his ill-founded application that Mr. MacAdams be disqualified from continuing to act for Harminder; and his repeated reliance on late-filed or un-filed materials, improperly served or not served at all, which has occurred again in the context of the present applications. 5th Mayer circumstance: where a party who is in a financially superior position to the other brings proceedings, not with the reasonable expectation of a favourable outcome, but in the absence of merit in order to impose a financial burden on the opposing party [99] There is no question that Harbans used the financial resources available to him to impose significant and unnecessary financial burdens on those opposed to him, Harminder and Zora, because despite the state of the title to the berry farm and the order of the Court for its sale, which was sought by its other two owners (who together had a two-thirds legal interest) he remained determined to control the fate of the berry farm by filing the CPL and pursuing litigation that proved to be without merit. Harbans used a cash payout in January 2009 of $760,000 from the sale of the berry farm to litigate issues relating to farm accounting, a far more expensive avenue than via arbitration as was available under the partnership agreement. 6th Mayer circumstance: where a party presents a case so weak that it is bound to fail, and continues to pursue its meritless claim after it is drawn to its attention that the claim is without merit [100] This circumstance overlaps with the 3rd Mayer circumstance. 7th Mayer circumstance: where a party brings a proceeding for an improper motive [101] I find that Harbans acted with an improper motive throughout. He sought to obtain control of the berry farm lands at a discounted price. He resisted a sale to a third party brought forward by Harminder in July 2007 for $4,800,000, seeking a sale on the open market. Then Harbans attempted through the ruse of his son as a prospective purchaser to have the Court approve this cash offer that the receiver did not consider to be the best offer, an offer to purchase the berry farm for $4,531,013, a price significantly lower than the July 2007 offer and an amount approximately $875,000 lower than the offer to the receiver made by Harminder and Zora. He was attempting to use the CPL against the berry farm to secure a sale to his son and two others at a discounted price. 8th Mayer circumstance: where a party maintains unfounded allegations of fraud or dishonesty [102] This circumstance does not apply in this case. 9th Mayer circumstance: where a party pursues claims frivolously or without foundation [103] Ultimately the Court's predictions that Harbans' claim to an interest greater than one-third in the proceeds from sale of the berry farm lands would fail turned out to be correct. Harbans was also unsuccessful in relation to aspect of his claims in the ownership and accounting action as they related to equipment and berry plants, given the findings of Crawford J.: March 28, 2013, oral reasons for judgment, paras. 6, 45 and 68. [104] Therefore, I find that Harminder is entitled to an award of special costs in relation to the partition action for all steps taken in that action after December 7, 2007 up to and including April 30, 2013. He is also entitled to special costs in the ownership and accounting action relating to the lifting of the CPL. [105] Because of the need to break down the amount provided by counsel to periods pre- and post-December 7, 2007 - with costs at Scale C payable prior to December 7, 2007 and special costs after December 7, 2007 to April 30, 2013 - the matter of costs is referred to the Registrar. I have determined that special costs are to be payable at 85% of actual costs incurred: Mayer v. Osborne Contracting Ltd., supra at paras. 99-102; Buchan v. Moss Management Inc., 2010 BCSC 121 at paras. 25-26; and Buchan v. Moss Management Inc., 2010 BCCA 393 at paras. 12, 13 and 16. [106] I have considered Harminder's written submissions about the re-allocation of fees incurred by the receiver after May 15, 2008 when the sale of the berry farm ought to have completed absent Harbans' litigious activities, which delayed the sale and drove up the fees for services the receiver then had to provide. Harminder submits that an additional expense of $29,150 was incurred for which both Harminder and Zora should be reimbursed half, or approximately $14,575 each. Zora has not made that claim in his application. I am not clear whether this aspect of Harminder's claim was dealt with by Crawford J. It appears that it may have been. I specifically note para. 77 of Crawford J.'s oral reasons for judgment dated March 28, 2013 where he makes an award of $40,000 as "the increase in the expenses due to Harbans' involvement with the Receiver." Therefore, I decline to order this re-allocation, but in the event that I am in error and this issue remains outstanding, counsel have leave to make further application. [107] I also find that Harminder is entitled to party-party costs for abandoned appeals in the amount of $3,200, and to costs at Scale C for the present application. Zora's Costs [108] The bulk of the heavy lifting from a legal point of view was done by Harminder and his counsel. In July 2007 Zora decided to support Harminder instead of Harbans in the legal battle over the berry farm. Ultimately, Zora too became a substantially successful party, and as matters proceeded he incurred significant legal costs. From early on in the partition action and in the ownership and accounting action, Zora has been most ably represented by Mr. Holeksa. [109] It must be remembered that Harbans and Zora were involved in two further actions that went to trial before Crawford J. that potentially placed all three brothers contrary in interest in relation to other property and business matters. In the partition action and the ownership and accounting action Zora and Harminder could not have been represented by the same legal counsel because of Harbans' claims that by virtue of dealings with Zora and disproportionate financial contribution, Harbans was entitled to 74% of the proceeds of sale from the berry farm. It was therefore not appropriate for Harminder and Zora to have the same counsel in either the partition action or the ownership and accounting action. There were no economies of scale to be had in these circumstances. I find that Harbans is separately liable for costs incurred by Zora: Royal Bank of Canada v. B.M.P. Global Distribution Inc., 2011 BCSC 1650 at para. 33; Tangerine Financial Products Limited Partnership v. Sutherland, 2013 BCCA 283 at paras. 54 and 55. [110] Based on the same history in the partition action and the ownership and accounting action and the same legal analysis engaged in above I find that Zora is entitled to special costs payable by Harbans for reasonable legal fees, disbursements and taxes incurred during the first period discussed above, from April 7, 2008 to July 21, 2008 in relation to his application to purchase the berry farm and his application to lift the CPL to permit the sale to go ahead. Because it is not clear to me whether the estimated $50,000 in actual legal expenses incurred in relation to the CPL and/or the additional $9,000 referred to in Mylinda Pearson's 2nd affidavit as relating to the application for approval of the sale are included in the amount of $100,604.49 stated to be for this period, Zora will have his costs assessed by the Registrar. He is entitled to special costs at 85% of reasonable costs incurred. [111] For the second period, from January 1, 2009 to February 12, 2009, for which Zora indicates that he has incurred legal costs of approximately $22,000, I am satisfied that he is also entitled to special costs at the same rate of 85% for reasonably incurred legal fees, disbursements and taxes. I have specifically considered this aspect in light of the submissions made and the initial outcome in relation to the applications giving rise to the January 23, 2009 oral reasons for judgment. However, given that no subsequent hearing was held and the funds remained in trust as security for costs payable by Harbans, both Zora and Harminder must be regarded as the ultimately successful parties. By this point Harbans' reprehensive conduct had driven up the legal costs of Zora and Harminder so significantly that they were entitled to seek security for costs and were ultimately successful. [112] Zora is also entitled to costs for this application at Scale C. Conclusion [113] As the substantially successful parties in the partition action and the CPL proceedings in the ownership and accounting action, Harminder and Zora are entitled to costs payable by Harbans. All costs are payable forthwith upon assessment by the Registrar in accordance with these reasons. I have deliberately stated that the determination of amounts payable be based on actual costs incurred by Harminder, as opposed to the Registrar having to assess reasonable costs. The Registrar will assess reasonable costs with regards to Zora. Counsel provided detailed accounts and had the Court decided the costs issues in completely in accord with their submissions I would have fixed the amounts payable. It would not be appropriate at this stage to have Harbans or his representative take these parties through protracted hearings related to an assessment of costs, thus further increasing their costs. [114] For the reasons set out above I find that Harminder is entitled to his costs at Scale C for the portion of the partition action up to and including December 7, 2007, and thereafter he is entitled to special costs at 85% of his actual legal fees, disbursements and taxes, an amount to be determined by the Registrar. He is also entitled to special costs at 85% of his legal fees, disbursement and taxes as incurred, an amount to be determined by the Registrar, for the proceedings in the ownership and accounting action pertaining to the lifting of the CPL. Harminder is also entitled to party-party costs in the amount of $3,200 for abandoned appeals. In the event that the issue of re-allocation of the expense of the receiver after May 15, 2008 remains outstanding, counsel have leave to apply to the Court. [115] Zora is entitled to special costs at 85% of reasonable legal fees, disbursements and taxes, for both periods of time specified in these reasons, to be determined by the Registrar. [116] Both Harminder and Zora are entitled to their costs for these applications at Scale C payable forthwith. "The Honourable Madam Justice E.A. Arnold-Bailey"