McCulley v. MacMullin

McCulley v. MacMullin Court Supreme Court Date 2015-09-16 Citation 2015 NSSC 256 Docket Hfx 423754 Judge/Registrar/Adjudicator Chipman, James L. (Honourable Justice) Document Type Decision Relations Library Sheet - McCulley v. MacMullin - 2015 NSSC 256 - 2015-09-16 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: McCulley v. MacMullin, 2015 NSSC 256 Date: 2015-09-16 Docket: Hfx No. 423754 Registry: Halifax Between: Garett Todd McCulley and Michelle Lynn McCulley Applicants v. Marsha Monique MacMullin Respondent Judge: The Honourable Justice James L. Chipman Heard: July 30, 2015, in Halifax, Nova Scotia Counsel: Kevin A. MacDonald, for the Applicants J. Walter Thompson, Q.C., for the Respondent By the Court: Introduction [1] This dispute arises from an aborted real estate transaction. On November 27, 2013, the parties entered into an Agreement of Purchase and Sale (standard printed form published by the Nova Scotia Association of Realtors). The property closing was set for January 3, 2014. In late December a toilet valve failed and the house was considerably damaged. The parties agreed to extend the closing to January 6 and then 10, 2014. In the lead up to the closing, the parties could not agree on the requirements of clause 7 (entitled, Damage Prior To Closing) of the Agreement of Purchase and Sale and the vendor then terminated the transaction. The would-be purchasers then commenced the within lawsuit on January 17, 2014, seeking an injunction and specific performance. A Defence was filed on February 18, 2014. [2] By consent Order dated April 15, 2015, the parties agreed to convert the lawsuit from an action to an application. Application Filings and Evidence [3] Prior to the hearing the Court received from the Applicants an affidavit sworn by Garrett Todd McCulley on April 24, 2015 (similar to an earlier affidavit he swore on January 26, 2015), together with the Applicants’ brief and booklet of authorities. [4] From the Respondent, the Court received an affidavit sworn by Marsha Monique MacMullin on March 12, 2015, along with her brief and cases (the cases were provided with an earlier summary judgment application, which did not proceed). [5] At the hearing both affiants were cross-examined, with Ms. MacMullin (who approximately one year ago changed her last name to her husband’s surname of Landvatter) giving evidence by way of video-link. In this regard, the Respondent presently resides in Arizona and her video testimony was by consent. Background [6] The property in question is 303 Norman Boulevard, Hammonds Plains, Halifax County, Nova Scotia (the “House”). The Respondent owned the House and the Applicants agreed to purchase it for $303,500, with an initial closing on January 3, 2014. The Agreement of Purchase and Sale (the “Agreement”) contained all of the common clauses, inclusive of the following: DAMAGE PRIOR TO CLOSING All lands, buildings, fixtures and all other property being purchased hereby shall be and remain at the risk of the Seller. Pending completion of the sale, the Seller shall hold all insurance policies and the proceeds thereof in trust for the parties as their interests may appear, and in event of damage to the said property, the Buyer may either have the proceeds of the insurance and complete the purchase, or may terminate this Agreement and the deposit shall be returned to the Buyer. (Not applicable to Agreement of Purchase and Sale Resale Condo – see Clause 7 of Resale Condo Schedule). [“Clause 7”] [7] The House was vacated by December 29, 2013. While empty, an upstairs toilet valve failed. This caused water to leak down through the House causing substantial damage. This prompted (then) counsel for the parties to become engaged and a series of lawyers’ emails ensued between December 31, 2013 and January 13, 2014. These emails were placed in evidence as exhibits to the affidavits and are critical in my assessment of the matter. [8] Below I have set out the most significant excerpts from the email exchange between Erin O’Brien Edmonds, Q.C. (counsel for the McCulleys) and Matthew J.D. Moir (counsel for Ms. MacMullin). [9] Ms. O’Brien Edmonds initiated the exchange with these two emails sent to Mr. Moir on New Year’s Eve, 2013: As you may now be aware, the property at 303 Norman Boulevard has been extensively damaged due to water leakage. It is uninhabitable. The closing is scheduled for January 3, 2014. I am sure your clients are distraught as are mine. The agreement provides the option to my client to terminate and receive the return of the deposit or, alternatively take the insurance proceeds and complete. In order to make that decision, my clients will need to know if the insurer is accepting the responsibility for the loss and how much insurance is in place to cover the loss. One factor for my clients is that they were to renovate the property. This was known at the outset. My client purchased materials for the renovation. In the meantime, they will have to find alternate accommodations as their existing property is to close January 8th. We are proposing that the closing be extended for two weeks until more information is available about the insurance as noted above and the cause of the loss and extent of damage, to allow my client to make the decision to terminate or accept the insurance and complete. However, my client wishes to reserve the right in that two week period to terminate should they find another property that suits their purposes. I look forward to hearing from you. … Further to my last email and to clarify, our client would be looking for your client to cover their alternate accommodation costs (acting reasonably) during the two week extension. My clients are looking around to find somewhere to live at the moment. [10] From the next email sent by Ms. O’Brien Edmonds on January 3, 2014, it seems clear the two lawyers had a conversation on January 2nd. The email reads: Due to the storm and the fact the property transaction is not able to close due to significant water damage, I suggest we extend the transaction until Monday. As we discussed yesterday, my client is unable to make the election as described in paragraph 7 of the Agreement as your client is not yet able to confirm that the insurance will cover the loss. My clients are interested in negotiating some resolution to this issue. Kindly confirm and extension for further discussion until Monday, January 6, 2014. [11] This was met by the following email from Mr. Moir, later on January 3rd: My client spoke with her insurer. Apparently, as this was not the owner’s primary residence, the policy only covers restoring the property and not incidental expenses such as for alternative accommodations. The insurer is still investigating and has not given a position on whether the damage will be covered, but it appears that it likely will be because it has been verified that the heat was working at the time of the event. My client would not be able to afford to cover your clients’ alternative living accommodations while the damage is being repaired, and the insurance will not cover these expenses either. My client will certainly agree to an extension to Monday if yours would like to take some time to consider their position. However, we are not expecting a response from the insurer on whether the damage is covered until about the middle of next week. If your client is interested in extending the closing until then, my client would also be open to that. I look forward to hearing from you. [12] Ms. O’Brien Edmonds then responded with this January 3rd email: I suggested extension until Monday just to keep all options open, however, my client is agreeable to extending until end of next week when more information is hopefully available. Let’s confirm to January 9th and then go from there? I will speak to my client about the costs of their alternate living expenses issue. However, even though there is a lot unknown at this time and you have indicated that your client does not have cash flow at the moment, surely they would agree to some compensation such as price reduction equal to their costs if my client is prepared to wait it out? I look forward to your comments. [13] The lawyers then agreed (by way of January 7th emails) to extend the closing to January 10, 2014. On January 8th, Mr. Moir sent this email: My client received news today that the loss in this matter is covered. The insurer will send its contractors in to restore the home to its previous status and quality. Unlike in an owner-occupied homeowner’s policy claim, there is no option for a cash payout. Work is expected to begin in a couple of days. The adjustor says that, although there is no option in the policy to account for or use any materials your clients may have already purchased, they will work with your clients on that score insofar as they can. Perhaps the insurer’s contractors can purchase some of your clients’ materials from them. With regard to your comment about compensation to your clients, I think my client might very well have agreed to that if she could afford it. Ms. MacMullin feels terrible about the position your clients find themselves in and she wishes she could help. She cannot. The adjuster says it is going to take at least three months to restore the home. My client cannot continue to carry the home and she must sell it now. If your clients are still interested in purchasing the home, then we must close now. Otherwise your clients must terminate. I am sorry to have to be so blunt about it but that is simply the economic reality my client now finds herself in. Kindly advise your clients’ position. I look forward to hearing from you. [14] On January 9th, there were a series of emails between the lawyers; below I have set out the key exchanges: Moir To O’Brien Edmonds: It is past 3:00 and I have not had your clients’ response, therefore I am assuming that they are terminating this transaction. O’Brien Edmonds To Moir: My clients require more time to consider the options you posted. As you know your client is not able to fulfill the option of making insurance proceeds available to my clients to complete. Therefore my clients require further time as their preference is not to two terminate. Their lender needs to be consulted since the insurance funds are not available. Moir To O’Brien Edmonds: Can your clients please provide their position as soon as possible tomorrow? My client needs an answer in the morning. O’Brien Edmonds To Moir: I appreciate your client would like a quick answer. However, you have not provided me with sufficient information yet for my client to make the election under the contract. I will require a copy of the insurance contract for review by my client’s lender and a contact person at the insurance company who can confirm the insurance contract is assignable by my client should they close with the property in it’s current condition. We will need sufficient time to confirm the lender will fund under these conditions. My client wishes to complete provide the funding can be obtained. In my opinion your client cannot force termination when the contract provides two options, one of which cannot be fulfilled by your client;. In other words, your client cannot take advantage of her own wrong. I look forward to receiving the information requested. [15] On January 10th, counsel continued their email exchange and below I have excerpted the key passages: Moir To O’Brien Edmonds: I will take instructions but I do not want to remain silent for another moment on your assertion that my client cannot take advantage from her own wrong. Leaving aside my position on whether my client can force termination (which is not what I was asserting), my client has done absolutely nothing wrong. She has performed each and every one of her obligations pursuant to the contract which she has with yours. The contract does not warrant that the property will be in the same condition at closing as it was on inspection; only rather that your client will have the option to terminate if it is not in the same condition. O’Brien Edmonds To Moir: I appreciate your position. I was not alleging any intention wrong on your client’s part as we all realize this was an accident. However, your client is not able to provide the insurance proceeds to rebuild as contemplated by the agreement. That removes one remedy which was contemplated by the contract. The remaining remedy of termination is not acceptable to my clients. They wish to take advantage of the other remedy which is not available. That is what I meant about your client’s own wrong. Perhaps my words did not clearly express what I intended (they were written at 9:30 pm at night). My clients do want to buy this property. They want to work it out with your client. To do so requires us to communicate with the insurer however. This what we are asking. O’Brien Edmonds To Moir: The reality of the situation on 303 Norman Boulevard is that more time is needed to obtain sufficient information to be able to confirm the closing of the property. We should probably put a reasonable estimate of time in place for this. I will be here next week but out the following week. Perhaps we can agree to extend one more week to allow you to provide the insurance information that our lender will need. Please seek instructions regarding this. Moir To O’Brien Edmonds: I am sorry but I have received instructions and my client does not agree to extend the closing date further. She has no obligation to provide insurance documentation and in any event she would not be able to lay hands on it today. I am sending the deed and accompanying documentation to your office. Your clients can either pay the adjusted purchase price today or give notice of termination. [16] The remaining emails in evidence (from January 10, 13 and 14, 2014) essentially amount to counsel re-stating their clients’ respective positions. [17] The affidavits and viva voce evidence offer little more on the emails but for admissions made by Ms. MacMullin. During cross-examination, Ms. MacMullin agreed she did not provide Mr. Moir with a copy of her home owner’s insurance policy and to her knowledge, he only would have seen the renewal page. [18] During cross-examination, Ms. MacMullin also confirmed she sold the House to another buyer for $325,000 on July 7, 2014. Issues 1. What is the proper interpretation of Clause 7? 2. Did either of the parties breach Clause 7 and if so, what is the appropriate measure of damages? Position of the Parties Applicants [19] Mr. and Mrs. McCulley rely on authority from the Supreme Court of Canada which they say interprets Clause 7 in a way favourable to their position. They assert that when damage occurred to the House (because it was subject to the Agreement, inclusive of Clause 7) they should have been given a reasonable period of time to obtain the vendor’s insurance policy and assess their options. While acknowledging the vendor has the right to have the proceeds of insurance and direct the repairs, the Applicants say that the law establishes they should have appropriate time to assess the situation before making the decision to either terminate or close. [20] The McCulleys say Ms. MacMullin refused to provide proper insurance confirmation. They add that she forced them to agree to close or terminate after allowing insufficient time (a one week extension was granted) to make up their minds. In the result, they seek damages for Ms. MacMullin’s breach of the Agreement. Respondent [21] Ms. MacMullin emphasizes the Agreement is a contract with clear meaning, “take it or leave it”. She maintains Clause 7 does not permit a buyer to “dither and doddle” in making their election. The Respondent says that Clause 7 must be interpreted strictly and narrowly. She asserts that to do otherwise would be to read in a host of conditions and qualifications which would result in complexity for both buyers and sellers. [22] The Respondent says that the law is such that the buyer must either take the damaged property with the promise of insurance proceeds or terminate. She points out that time under the Agreement remains “of the essence”. [23] Ms. MacMullin adds that the McCulleys were attempting to impose new conditions on the Agreement that amounted to them changing the agreed upon terms. [24] The Respondent says that a week extension was sought and ultimately granted. Once January 10, 2014 passed, Ms. MacMullin tendered but since the McCulleys did not close, they thus breached the Agreement. [25] The Respondent seeks return of the $1000 deposit held in trust by the realtor, Royal LePage Atlantic, along with costs. Alternatively, Ms. MacMullin says the Applicants suffered little or no damages. Clause 7 – Governing Law [26] Almost thirty years ago, the Supreme Court of Canada had cause to review a Nova Scotia real estate case involving an Agreement of Purchase and Sale similar to the one in this case. Undoubtedly a precursor to the current Nova Scotia Association of Realtors standard form, the form before the Supreme Court of Canada contained a Clause 5 which is very similar to Clause 7. In Wile v. Cook, [1986] 2 S.C.R. 137, Justice LaForest on behalf of a unanimous Court set forth the facts, as follows: 2 The appellant as purchaser and the respondent as vendor entered into an agreement of purchase and sale dated January 23, 1981 with respect to a piece of land in Hants County, Nova Scotia for a price of $43,662. The agreement set February 27, 1981 as the closing date. It was in the standard form of the Nova Scotia Real Estate Association and contained the following provisions: 5. All buildings and equipment upon the real property shall be and remain at the risk of the Vendor until closing. Pending completion of the sale, the Vendor will hold all insurance policies and the proceeds thereof in trust for the parties as their interests may appear and in event of damage to the said premises, the Purchaser may either have the proceeds of the insurance and complete the purchase, or may cancel the Agreement and have all moneys theretofore paid returned without interest. … 9. Time shall in all respects be of the essence in the Agreement. 3 On February 26, the day before the closing date, the building on the property was destroyed by fire. The parties thereupon agreed to extend the time for closing by 2 weeks, setting March 13, 1981 as the closing date. Between the date of the fire and the new closing date, the purchaser's solicitor made enquiries about insurance coverage and neither party disputes the Court of Appeal's finding that he learned that there was at least enough to cover the total encumbrances against the property, i.e. $33,000, even though he did not know the exact terms of the policy. Indeed, at the trial, the purchaser testified that his solicitor had told him there was $50,000 coverage on the property. He also learned, however, that there was some question whether the insurer would deny liability on the ground that the fire was deliberately set, a ground the vendor consistently stated had no basis. 4 The purchaser's solicitor then asked that the closing date be delayed to allow time for the dispute between the vendor and the insurer to be settled. This request was denied by the vendor, who also refused to supply any information as to whether the property was covered by insurance and the particulars of any such coverage. We saw, however, that the purchaser had through his own enquiries obtained much of this information. I agree with the Court of Appeal's finding that what really concerned the purchaser was not the exact amount of the insurance coverage but whether any of it would be paid because there was evidence suggesting arson. [27] Once again, the above Clause 5 is very similar to Clause 7 and the Supreme Court of Canada’s interpretation of the clause is therefore critical. [28] Justice LaForest developed his interpretation of the clause by picking up on the words of Chief Justice McKeigan, who wrote the majority decision of the Court of Appeal (Morrison, J.A. concurring, Pace, J.A. dissenting) in the below paragraph: 11 In my view, the case can be disposed of largely on the basis of the interpretation to be given to cl. 5 of the agreement. To understand the meaning of that clause, it is useful to refer to the situation that would prevail at common law in the absence of this provision. As McKeigan C.J.N.S. notes in giving the majority judgment of the Court of Appeal, the common law is harsh on a purchaser of real property that is damaged by fire or otherwise between the date of the agreement of sale and the date of closing. Unless otherwise provided by the agreement, the purchaser must go through with the purchase and pay the full purchase price. And he is not at common law entitled to the proceeds of any insurance on the property in the absence of express or implied arrangements for the purpose. [29] The Supreme Court of Canada went on to explain how Clause 5, “significantly alleviates the harshness of the common law”, in the following paragraphs: 12 Clause 5 significantly alleviates the harshness of the common law. Under that provision, the buildings and equipment remain at the risk of the vendor until closing, and in the event of damages to the said premises, the Purchaser may either have the proceeds of the insurance and complete the purchase, or may cancel the Agreement and have all moneys theretofore paid returned without interest. But the clause does not set forth any specific amount of insurance. Indeed, the vendor is under no duty to take out any insurance. All the clause provides for is that if the purchaser elects to go through with the purchase he is entitled to whatever insurance proceeds may be owing. It does not give the purchaser any guarantee that the insurance is necessarily collectable. Prudence may dictate that a purchaser himself obtain coverage during the period before closing, but I would not wish to be taken as making any comment regarding a solicitor's duty to so advise him in circumstances like the present. 13 I have no doubt that when damage ensues to the property subject to the agreement, such as occurred in this case, the purchaser is entitled to be granted time to sort out what he is to do, and he is also entitled to obtain the details of the insurance coverage from the vendor. McKeigan C.J.N.S. notes how the latter right can, if necessary, be enforced by application to a Court in Chambers in Nova Scotia. But as I mentioned before, the purchaser was not really concerned with finding out the details of the coverage. He had obtained considerable information about this through his solicitor's investigation. What was really dissuading him from going through with the transaction was the fear that the insurer would not pay. As I mentioned before, cl. 5 of the agreement does not guarantee him this. On the occurrence of the fire, he is entitled to be given a reasonable time to assess his position, and to be informed of the facts concerning coverage. The duty of trustee imposed on the vendor by the clause assures him of this. But as already stated, the clause does not accord him the right to wait and see if the insurer will pay. If the purchaser is concerned about this, he can elect to cancel the agreement. [emphasis added] Analysis and Disposition [30] Picking up on the words of Justice LaForest, purchasers (here Mr. and Mrs. McCulley) are entitled to whatever insurance proceeds may be owing. Further, the purchasers are entitled to be granted time to sort out what they are to do, and they are entitled to obtain details of the insurance coverage from the vendor. Finally, the purchasers are to be given a reasonable time to assess their position and to be informed of the facts concerning coverage. [31] When the email exchange is examined, it is apparent the McCulleys were not given what the Supreme Court of Canada has said they must receive. [32] In Ms. O’Brien Edmonds’ first email she asks, “…how much insurance is in place to cover the loss…”. She went on in this email to ask for a two week closing extension, “…until more information is available about the insurance… to allow my client to make the decision to terminate or accept the insurance and complete.” [33] In Mr. Moir’s initial (substantive) reply, he said his client had spoken with her insurer and that, “…the insurer is still investigating and has not given a position on whether the damage will be covered…”. [34] The subsequent emails confirm the closing was then moved from January 3rd to 10th. The next mention of insurance is by way of Mr. Moir’s January 8th email when he advises his “…client received news today that the loss in this matter is covered…”. [35] The next day Ms. O’Brien Edmonds sent an email stating the McCulleys would require more time to consider their options. Later on that date (10:08 p.m.), Ms. O’Brien Edmonds wrote an email to Mr. Moir, “…you have not provided me with sufficient information yet for my client to make the election under the contract.” [36] When Ms. MacMullin’s counsel writes the lawyer for the McCulleys on January 10th, he indicates he has instructions that his client does not agree to extend the closing date further. He adds that she has no obligation to provide insurance documentation. [37] Having regard to the evidence and Supreme Court of Canada authority, I am of the view that the Respondent unlawfully repudiated the Agreement. In this regard, I find that the McCulleys were not given ample time to sort out what they were to do. Furthermore, they were not provided with the details of the insurance coverage from Ms. MacMullin (she did not provide them with the policy). Finally, the McCulleys were not given a reasonable time to assess their position and to be informed of the facts concerning coverage. Accordingly, I find that the Respondent refused to complete the Agreement according to its terms by insisting on a closing without having delivered up the proper insurance information. [38] With respect to the Respondent’s position that the McCulleys actions (through Ms. O’Brien Edmonds’ emails) were in effect, trying to impose new conditions on the Agreement, I refer to Jenkins Road Developments Ltd. v. Wille, 2000 BCSC 56, a decision of Justice Low. In that case, the Court was dealing with a situation where vendors refused to complete unless the purchaser agreed to indemnify them for environmental contamination of vacant land and the purchaser insisted it would look to the vendors for damages arising from the contamination. Justice Low found that awaiting reports from the environmental engineers was reasonable and therefore did not impose a new condition to the agreement. [39] In the case at Bar recall Ms. O’Brien Edmonds’ second email of December 31, 2013 proposed that Ms. MacMullin cover the McCulleys’ alternate accommodation costs during a requested two week extension. This request was ruled out by Ms. MacMullin (through her lawyer’s January 3, 2014 email) and then not revisited in the subsequent emails. Indeed, the request appears to have been usurped by the McCulleys’ repeated request to review the insurance contract. Evidence for this statement appears in these emails from Ms. O’Brien Edmonds: December 31, 2013 – “We are proposing that the closing be extended for two weeks until more information is available about the insurance…” January 3, 2014 – “…my client is agreeable to extending until end of next week when more information is hopefully available.” January 9, 2014 – “…you have not provided me with sufficient information yet for my client to make the decision under the contract. I will require a copy of the insurance contract for review…” January 10, 2014 – “Perhaps we can agree to extend one more week to allow you to provide the insurance information…” [40] The facts disclose the insurance policy was never provided to counsel for the McCulleys. Once again, on cross-examination, it was Ms. MacMullin’s evidence that she did not provide the policy to her lawyer. [41] Having regard to Wile, supra, and as a matter of common sense, when damage occurs prior to closing, the seller’s insurance policy must be provided. That is to say, as a starting point, if the vendor has insurance, the complete policy has to be given to the purchaser to assess. Damages [42] The purpose of damages is to put the wronged party, as best as possible, in the position he/she would have been in, absent the breach (or tort). Here, for practical reasons, the McCulleys could not avail themselves of specific performance. After all, Ms. MacMullin chose to terminate (which I have found to be a wrongful termination) the Agreement and ultimately proceeded to repair the water damage. She then sold the house to another party in July, 2014 for $325,000; i.e., $21,500 more than what should would have realized had the sale gone through (approximately seven months earlier) to the McCulleys. [43] As for Mr. and Mrs. McCulley, they moved with dispatch to purchase another home in the same area as the House and ended up buying 44 Seth Aaron Drive, Hammonds Plains, Halifax County, Nova Scotia (the “Replacement House”) on February 21, 2014. The McCulleys bought the Replacement House for $313,000; i.e., $9,500 more than what they would have paid for the House. They then spent approximately $30,000 in renovations to the Replacement House, whereas they had planned to spend approximately $20,000 renovating the House. [44] Mr. McCulley’s affidavit provides appropriate backup in the form of documents and receipts to support the above, return of their deposit and “throw away” costs. Although I do not have expert opinion and/or real estate appraisals, I am nevertheless, prepared to acknowledge the special damages sought by the McCulleys as follows: 1. Return of their $1,000 deposit; 2. Their “throwaway” costs referable to the aborted sale of the House totalling $3,436; and 3. The aforementioned price differential between the House and Replacement House of $9,500. [45] In accepting the above special damages, I recognize that the house price differential is not a “hard number” and thus may be contrasted with the deposit and “throwaway costs”. Having said this, I am of the view on the totality of the evidence that these special damages are warranted. I would add that whereas Ms. MacMullin would appear to have profited by the aborted sale, the McCulleys found themselves financially considerably worse off as a result of Ms. MacMullin’s breach of the Agreement. In all of the circumstances, I am of the view that the within damages are fair and equitable. [46] While there are receipts to back up the renovation costs, I find the claim for the $10,000 difference in the costs of renovations is too remote. Given the absence of any expert evidence, I cannot determine whether, for example, the $30,000 spent increased the value of the Replacement House and if so, to what degree. Further, although the affiant was not challenged on his assertion that he spent more on renovating the Replacement House, one is left to wonder about the planned $20,000 renovations to the House. For instance, had the renovations proceeded at the House, might the McCulleys have ended up (as often is the case) spending more than they budgeted? Might they have matched (or exceeded) what they spent on the Replacement House? [47] In all of the circumstances, I find the renovation costs differential too speculative and decline to award this aspect of the claimed special damages. [48] As for general damages, the McCulleys seek generals in the range of $3,000 to $5,000, each. There was no medical evidence in support of these claims, and I am therefore not prepared to award such damages. [49] The above special damages total $13,936. To this I would add prejudgment interest at 4% (non-compounding) for the 21 months in question; i.e., approximately $1,000. Finally, I would award a global figure of $3,500 for costs and disbursements. [50] The within figures total $18,436 and I would ask Mr. MacDonald to prepare an Order reflective of this and for Mr. Thompson to consent as to form. I would ask that the Order stipulate that the judgment be applicable to the named Defendant as well as to her current (married) name of Marsha Monique Landvatter. Chipman, J.