Xceed Mortgage Corporation v. Jesty

Xceed Mortgage Corporation v. Jesty

Clause 11 of the mortgage does not permit recovery of every solicitor charge; the court must limit recoverable costs to reasonable expenses of enforcing the mortgage and may depart from full solicitor-and-client indemnity where special circumstances exist. The summary judgment work, excessive internal meetings,...

Source-derived case information.

Citation
2014 NSSC 51
Parties
Plaintiffs (defendants by Counterclaim): Xceed Mortgage Corporation and Xceed Funding Corporation; Defendant (plaintiff by Counterclaim): Albert Jesty
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
7 February 2014
Procedural Posture
Mortgage Foreclosure / Costs Assessment Post Trial
Outcome
Plaintiffs awarded reduced solicitor-and-client costs and limited disbursements; defendant ordered to pay the assessed amounts.
Legal Topics
Solicitor and Client Costs, Recoverable Disbursements, Tariff a Party and Party Costs, Reasonableness of Legal Fees, Special Circumstances Doctrine
Source Language
english
Mortgage Law Civil Procedure Costs and Taxation of Costs Contract Solicitor and Client Costs Recoverable Disbursements Tariff a Party and Party Costs Reasonableness of Legal Fees +1 more

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Parties

Xceed Mortgage Corporation and Xceed Funding Corporation

Plaintiffs (defendants by Counterclaim)

Albert Jesty

Defendant (plaintiff by Counterclaim)

Procedural Posture

Mortgage Foreclosure / Costs Assessment Post Trial

Legal Issues

  1. 1 Whether mortgage clause permitting solicitor and client costs entitles mortgagee to full solicitor-and-client indemnity
  2. 2 Whether 'special circumstances' justified departure from full solicitor-and-client costs
  3. 3 Which disbursements and fee items are reasonably recoverable in enforcement litigation

Ratio Decidendi

Clause 11 of the mortgage does not permit recovery of every solicitor charge; the court must limit recoverable costs to reasonable expenses of enforcing the mortgage and may depart from full solicitor-and-client indemnity where special circumstances exist. The summary judgment work, excessive internal meetings, regular client reports, and charges connected to an unnecessary witness application rendered full indemnity unduly onerous. On review of the account, the court awarded reduced solicitor-and-client costs of $14,000 plus HST of $2,100 and recoverable disbursements of $350 plus HST of $52.50, disallowing specified items related to the unsuccessful summary judgment motion and internal...

Court Disposition

Plaintiffs awarded reduced solicitor-and-client costs and limited disbursements; defendant ordered to pay the assessed amounts.

Orders

  • Defendant Albert Jesty to pay the plaintiffs solicitor-and-client costs of $14,000.00 plus HST $2,100.00 (total $16,100.00).
  • Defendant Albert Jesty to pay recoverable disbursements of $350.00 plus HST $52.50 (total $402.50).