Spoor v. Nicholls
- Citation
- 2002 BCCA 119
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- British Columbia Court of Appeal
- Decision
- 19 February 2002
- Posture
- Civil Appeal (construction/home Improvement Contract) / Court of Appeal Judgment Ordering New Trial
- Language
- English
More details
- Court
- British Columbia Court of Appeal
- Decision
- 19 February 2002
- Posture
- Civil Appeal (construction/home Improvement Contract) / Court of Appeal Judgment Ordering New Trial
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Because the appeal was necessitated by the respondents' application to reopen their case, the Court exercised its discretion to order that the respondents pay the appellants' costs of the appeal forthwith; the Court declined to address reinstatement of Builders Lien Act security because the issue was not before it; and the Court refused to depart from the ordinary rule that the costs of the first trial follow the event of the second trial, ordering the parties to bear their own costs of the present application.
Court disposition
Appeal allowed in part; new trial ordered; interlocutory and costs orders made as set out below.
Orders
- New trial ordered.
- Respondents to pay appellants' costs of the appeal forthwith.
- Issue of reinstatement of Builders Lien Act security not decided by this Court.
- Ordinary rule adhered to that costs of the first trial follow the event of the second trial (no departure granted).
- Parties to bear their own costs of the present application.
02
Material facts
Parties
Keith Howard Spoor
Appellant Counsel: R. W. CameronBrian Miller
Appellant Counsel: R. W. CameronIrene Janice Nicholls
Respondent Counsel: B. A. MarlattGilbert Nicholls
Respondent Counsel: B. A. Marlatt03
Procedural history
Posture
Civil Appeal (construction/home Improvement Contract) / Court of Appeal Judgment Ordering New Trial
04
Questions and positions
Legal issues
- 01
Whether respondents should be ordered to pay costs of the appeal forthwith
- 02
Whether the Builders Lien Act security should be reinstated by the Court
- 03
Whether appellants should recover costs of the first trial regardless of the outcome of the retrial
- 04
Whether to depart from the usual rule that costs of the first trial follow the event of the second trial
Party arguments
- Applicant
- Appellants sought three orders: respondents pay costs of the appeal forthwith; reinstatement of Builders Lien Act security; and an order that appellants recover costs of the first trial in any event of the second trial.
- Respondent
- Respondents opposed the additional orders; the respondents' conduct (application to reopen their case) had precipitated the appeal and they disputed entitlement to the statutory security and to any departure from ordinary costs rules.
05
Court’s reasoning
Legal principles
- 01
Common law / costs practice
Costs generally follow the event of the trial and, absent special circumstances, the costs of an earlier trial follow the result of a later retrial.
- 02
Procedural law / appellate jurisdiction principles
A court will not adjudicate issues or grant relief that were not before it on the appeal.
- 03
Appellate discretion and costs jurisprudence
An appellate court may order costs against a party whose conduct necessitated the appeal.
06
Ratio, limits and disposition
Ratio decidendi
Because the appeal was necessitated by the respondents' application to reopen their case, the Court exercised its discretion to order that the respondents pay the appellants' costs of the appeal forthwith; the Court declined to address reinstatement of Builders Lien Act security because the issue was not before it; and the Court refused to depart from the ordinary rule that the costs of the first trial follow the event of the second trial, ordering the parties to bear their own costs of the present application.
Obiter and limits
- I do not propose to review the circumstance of this already too lengthy piece of litigation.
- The issue of statutory security was not before us and therefore it is not appropriate for this Court to deal with it.
- I am not persuaded that the circumstances give rise to a departure from the usual rule on costs of the first trial.
Court disposition
Appeal allowed in part; new trial ordered; interlocutory and costs orders made as set out below.
- New trial ordered.
- Respondents to pay appellants' costs of the appeal forthwith.
- Issue of reinstatement of Builders Lien Act security not decided by this Court.
- Ordinary rule adhered to that costs of the first trial follow the event of the second trial (no departure granted).
- Parties to bear their own costs of the present application.
Source and reliance status
British Columbia Court of Appeal · 19 February 2002
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
British Columbia Court of Appeal
Judgment· 19 February 2002
2002BCCA0119 Citation: Spoor v. Nicholls Date: 20020219 2002 BCCA 119 Docket: V03512 Registry: Victoria
COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: KEITH HOWARD SPOOR and
BRIAN MILLER
PLAINTIFFS (APPELLANTS) AND: IRENE JANICE NICHOLLS and
GILBERT NICHOLLS
DEFENDANTS (RESPONDENTS) Before: The Honourable Mr. Justice Hall The Honourable Madam Justice Levine The Honourable Mr. Justice Low R. W. Cameron Counsel for the Appellants B. A. Marlatt Counsel for the Respondents Place and Date of Hearing: Victoria, British Columbia June 14, 2001 Place and Date of Judgment: Vancouver, British Columbia February 19, 2002 Written Reasons by: The Honourable Mr. Justice Low Concurred in by: The Honourable Mr. Justice Hall The Honourable Madam Justice Levine Reasons for Judgment of the Honourable Mr. Justice Low: [1] On 14 June, 2001 this Court gave judgment on this appeal. The case arises out of a modest home improvement construction contract. The trial judge had dismissed the claim of the plaintiff contractors and allowed the counterclaim of the respondent owners. We ordered a new trial. [2] The successful appellant seeks three additional orders: (a) that the respondents pay the costs of the appeal forthwith; (b) that the Builders Lien Act security of the appellants be reinstated; and (c) that the appellants recover the costs of the first trial in any event of the second trial. [3] I do not propose to review the circumstance of this already too lengthy piece of litigation. In my opinion, because this appeal was necessitated by the respondents making an application to reopen their case, it is appropriate that the respondents pay the appellants
costs of the appeal forthwith. [4] I do not consider it appropriate for this Court to deal with the issue of statutory security. That issue was not before us. [5] I am not persuaded that the circumstances here give rise to a departure from the usual rule that the costs of the first trial follow the event of the second trial. [6] I would order that the parties bear their own costs of the present application. "The Honourable Mr. Justice Low" I AGREE: "The Honourable Mr. Justice Hall" I AGREE: "The Honourable Madam Justice Levine"
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