Krafta v. F.L.E.X. Excavating Ltd.

Krafta v. F.L.E.X. Excavating Ltd.

Where a proposed defendant appears and actively and successfully opposes an application to be added and thus has a clear interest in the outcome, the court will exercise its discretion under the Rules to award costs to that proposed defendant; where the defendant and corporate party share counsel a single bill should be used to avoid double indemnification; interlocutory costs in these circumstances are to be paid at the conclusion of the proceeding.

Citation
2012 BCSC 616
Parties
Plaintiff: Frank Krafta; Defendant: F.L.E.X. Excavating Ltd.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
30 April 2012
Procedural Posture
Civil Breach of Contract and Negligence / Chambers Application to Add Party; Supplemental Reasons on Costs
Outcome
Application to add James Linton as a defendant dismissed; costs awarded to James Linton
Legal Topics
Application to Add Party, Costs of Interlocutory Application, Costs Payable to Non Parties, Service of Application Materials, Timing of Costs, Double Indemnification
Source Language
English
Civil Procedure Costs Joinder Tort Contract Application to Add Party Costs of Interlocutory Application Costs Payable to Non Parties +3 more

Case Brief

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Parties

Frank Krafta

Plaintiff

F.L.E.X. Excavating Ltd.

Defendant

Procedural Posture

Civil Breach of Contract and Negligence / Chambers Application to Add Party; Supplemental Reasons on Costs

Legal Issues

  1. 1 Whether costs of the application to add a proposed defendant should be payable to the proposed defendant personally or to the corporate defendant
  2. 2 Whether any costs awarded should be payable forthwith or at the conclusion of the proceeding

Ratio Decidendi

Where a proposed defendant appears and actively and successfully opposes an application to be added and thus has a clear interest in the outcome, the court will exercise its discretion under the Rules to award costs to that proposed defendant; where the defendant and corporate party share counsel a single bill should be used to avoid double indemnification; interlocutory costs in these circumstances are to be paid at the conclusion of the proceeding.

Court Disposition

Application to add James Linton as a defendant dismissed; costs awarded to James Linton

Orders

  • Costs of the application awarded to James Linton
  • F.L.E.X. Excavating Ltd. not entitled to a separate order for costs of this application if it remains a defendant at trial