Hillcrest Properties Ltd v Ian Robert Mcdonald Smith

• Jurisdiction: Bermuda
• Judge: Elkinson J
• Judgment Date: 06 July 2023
• Docket Number: 2021: No. 007
• Court: Supreme Court (Bermuda)

BETWEEN:

Hillcrest Properties Ltd

Appellant

and

Ian Robert Mcdonald Smith

Respondent

[2023] SC (Bda) 56 App. 6 July 2023

Before:

The Hon. Assistant Justice Elkinson

2021: No. 007

In The Supreme Court of Bermuda

APPELLATE JURISDICTION

Representation:

Mr Paul Harshaw, Canterbury Law for the Appellant

Mr Christopher Swan, Christopher E. Swan & Co for the Respondent

Elkinson J

The Application

1 A Notice of Appeal was filed by Canterbury Law Limited on behalf of the Appellant on 9 February 2021 in respect of a Judgment handed down by the Magistrate on 26 November 2020. As this was an appeal on costs, leave was required pursuant to section 3 of the Civil Appeals Act by the Magistrates Court and that was granted. In that Judgment, the Magistrate determined that he was functus officio in relation to dealing with an application for costs made by the Plaintiff in respect of a Judgment which the Magistrate had handed down on 13 March 2019. As that trial was nearing its conclusion, the Plaintiff applied for indemnity costs and the Magistrate refused to give those. The costs applied for by the Plaintiff, now the Appellant, were the costs of a lengthy trial, 7 days of hearing according to the Magistrate's Judgment. Subsequently, the Plaintiff, now Appellant, brought an application under the Liberty to Apply provision in the Judgment of March 2019, for costs. The Magistrate determined that he was functus officio, that he had already dealt with the issue of costs. He specified in paragraph 16 of his Judgment of 26 November 2020 that both parties had the opportunity to address the court on costs and that they had done so. He expressed that the court's view to deny the Plaintiff indemnity costs remained unaltered.

The Background

2 The relevant history of the matter is that there was a dispute between the parties relating to non-payment by the Respondent of maintenance fees and costs for renovations in circumstances where the Respondent claimed a breach of a repair covenant and monies owed to him as project manager on planned renovations at the condominiums owned by the appellant and where the Respondent lived. The Magistrate awarded the Appellant the amounts claimed and also made an award to the Respondent for the work he carried out as project manager of the Appellant. At the time, both parties argued for their costs and Appellant asked for indemnity costs as against Respondent.

3 In his Judgment of 13 March 2019, the Magistrate determined that “ The application for costs, on an indemnity basis, by the Plaintiff, for the seven day trial is denied.”

4 Leaving aside the issue as to whether a Magistrates Court could ever award indemnity costs, which I consider highly unlikely given the statutory nature of the Magistrates Court and that there is no provision in the establishing statutes or the rules made thereunder for such an award, the Magistrate refused the application. It would appear no further argument was made to him in respect of any other order for costs.

5 The Appellant relied on the provision in the Order that there would be “liberty to the parties to apply” to raise the issue of an award of costs again before the Magistrate.

6 The Respondent did file an appeal against the Judgment of 13 March 2019 and the record of appeal was prepared and Directions given for that but Respondent abandoned this appeal on 10 December 2019. Subsequently, the Appellant applied to be heard on the issue of costs pursuant to the liberty to apply provision.

7 On 2 November 2020, the Magistrate heard argument from the parties on this issue and on 26 November 2020 determined that he was functus officio and could not make any order as to costs. It is that Judgment which the Appellant appeals. Mr Harshaw on behalf of the Appellant...