Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership

2012 BCSC 158 Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, 2012 BCSC 158 Date: 20120131 Docket: S76792 Registry: New Westminster Between: The Owners, Strata Plan LMS 3851, and others Plaintiffs And Homer Street Development Limited Partnership, formerly Cressey (Homer) Limited Partnership, and others Defendants And O'Neill Hotels & Resorts Ltd., and others Third Parties Before: The Honourable Mr. Justice Truscott Settlement of Order on Reasons for Judgment of August 18, 2011 [2011 BCSC 1127] Counsel for Plaintiffs: S.T.C. Warnett Counsel for Defendant Developers: D.C. Harbottle Counsel for Third Parties O'Neill Hotels & Resorts Ltd., OHR Grand Management Ltd., Robert F. O'Neill and John C. O'Neill A. Borrell Place and Date of Hearing: New Westminster, B.C. January 27, 2012 Place and Date of Judgment: New Westminster, B.C. January 31, 2012 [1] The parties came before me to settle the form of order that should be entered to reflect my Reasons for Judgment of August 18, 2011 [2011 BCSC 1127]. [2] Following receiving submissions from counsel and considering the submissions I am prepared to sign an order that includes the wording in the following numbered paragraphs: 1. The third party claims of the developers against the third parties O'Neill Hotels & Resorts Ltd., OHR Grand Management Ltd., Robert F. O'Neill and John C. O'Neill for contribution or indemnity for negligence in the preparation of and in the misrepresentation of the financial information, forecast, or projections, are dismissed. 2. The third party claims of the developers against Robert F. O'Neill and John C. O'Neill as set out in the Amended Third Party Notice dated February14, 2005 and filed February 15, 2006, are struck out as disclosing no reasonable cause of action. (In my Reasons for Judgment I determined on my review of the allegations made in the Amended Third Party Notice that the claims being made against Robert and John O'Neill personally are for management issues only. On that basis I struck out the claims against them personally as disclosing no reasonable claim against them. Counsel for the developers has confirmed to the Court that this is the only claim made against Robert and John O'Neill personally in that pleading even though para. 1 of that pleading might be taken as making a claim for indemnity or contribution against them as third parties in respect of all claims described in the Amended Statement of Defence filed by the developers. The Court accepts counsel's confirmation that the claims against Robert and John O'Neill are only to be read in that pleading as applying to management issues. On that basis I am prepared to sign the order with para. 2 as indicated.) 3. The developers must amend their Amended Third Party Notice to provide particulars of the alleged mismanagement of the Western Grand Hotel by OHR Grand, the particulars of the duty of care owed by OHR or OHR Grand, and to whom that duty is owed. 4. The developers' application to amend their Amended Third Party Notice further with the proposed Further Amended Third Party Notice in the form as considered in my Reasons for Judgment is dismissed. 5. The plaintiffs are ordered to make production pursuant to Rule 7-1(1) of the Rules of Court of all documentation up to the opening of the hotel together with all documentation relating to alleged mismanagement of the hotel thereafter, and all documentation relating to their claims for defects. 6. OHR and OHR Grand must make production pursuant to Rule 7-1(1) of all documentation relating to the alleged mismanagement of the hotel and the alleged building defects. 7. The developers must make production pursuant to Rule 7-1(1) of all documentation relating to the alleged mismanagement of the hotel and the alleged building defects. 8. The third parties are entitled to their costs of the application and its preparation, from the developers, and the third parties Robert and John O'Neill are entitled to their costs of the third party proceedings taken against them, to date. "The Honourable Mr. Justice Truscott"