2301072 Nova Scotia Ltd. v. Lienaux

2301072 Nova Scotia Ltd. v. Lienaux

Under Rule 42 the court may order security where it is just; given the respondents' history of unpaid solicitor-client cost judgments, their intent to pursue amendments and offensive relief beyond the limited amendments allowed by the Court of Appeal, and the risk of non-payment, the court ordered security for costs ($25,000 before specified applications; $10,000 additional if the Toronto-Dominion Bank is joined) and required payment of all prior costs and accrued interest before other applications will be heard.

Citation
2006 NSSC 210
Parties
Plaintiff/applicant: 2301072 Nova Scotia Limited; Defendant/respondent: Charles D. Lienaux; Defendant/respondent: Karen L. Turner-Lienaux; Defendant (plaintiff by Crossclaim): Marvin C. Block, Q.C.; Defendant by Counter Claim: The Toronto-Dominion Bank; Third Party: Wesley G. Campbell; Third Party (deceased): Grant E. MacNutt
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
9 August 2006
Procedural Posture
Civil Security for Costs Application / Interlocutory Application (application Inter Partes)
Outcome
Application granted in part; respondents ordered to post security for costs and to pay prior costs awards with interest before further applications will be heard
Legal Topics
Security for Costs, Costs Awards and Enforcement, Amendment of Defence, Removal of Counsel, Disclosure, Reinstatement/joinder of Parties
Source Language
English
Civil Procedure Costs Champerty and Maintenance Fraud on the Court Joinder/third Party Procedure Security for Costs Costs Awards and Enforcement Amendment of Defence +3 more

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Parties

2301072 Nova Scotia Limited

Plaintiff/applicant

Charles D. Lienaux

Defendant/respondent

Karen L. Turner-Lienaux

Defendant/respondent

Marvin C. Block, Q.C.

Defendant (plaintiff by Crossclaim)

The Toronto-Dominion Bank

Defendant by Counter Claim

Wesley G. Campbell

Third Party

Grant E. MacNutt

Third Party (deceased)

Procedural Posture

Civil Security for Costs Application / Interlocutory Application (application Inter Partes)

Legal Issues

  1. 1 Whether respondents should be ordered to post security for costs under Civil Procedure Rule 42
  2. 2 Whether unpaid prior cost judgments against respondents justify ordering security despite their being defendants
  3. 3 Whether respondents must post security before pursuing amendments to the defence beyond Court of Appeal permission

Ratio Decidendi

Under Rule 42 the court may order security where it is just; given the respondents' history of unpaid solicitor-client cost judgments, their intent to pursue amendments and offensive relief beyond the limited amendments allowed by the Court of Appeal, and the risk of non-payment, the court ordered security for costs ($25,000 before specified applications; $10,000 additional if the Toronto-Dominion Bank is joined) and required payment of all prior costs and accrued interest before other applications will be heard.

Court Disposition

Application granted in part; respondents ordered to post security for costs and to pay prior costs awards with interest before further applications will be heard

Orders

  • Respondents shall post security for costs of $25,000 prior to the hearing of any application to amend the defence beyond that allowed by the Nova Scotia Court of Appeal or any application to remove counsel for the applicant as counsel of record.
  • If respondents apply to join the Toronto-Dominion Bank as a party, they must post additional security for costs of $10,000 when the documents are filed.