Renke J

1.3: General authority of the Court to provide remedies
3.65: Permission of Court to amendment before or after close of pleadings
3.66: Costs
5.31: Use of transcript and answers to written questions
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

In a lengthy and complex dispute over land between family members, the Plaintiff alleged, among other things, breach of fiduciary duty and unjust enrichment. The Plaintiff applied to amend its Statement of Claim at Trial, citing Rules 3.65(1) and 3.65(4) which provide the Court with broad discretion to amend a pleading before or after the close of pleadings. Renke J. noted that a pleading may be amended no matter how careless or late, subject to four major exceptions, and determined that the amendments requested by the Plaintiff were generally only clarifying in nature. Justice Renke permitted the amendments.

Renke J. observed that Rule 3.66, which provides that costs, if any, which result from an amendment to a pleading are borne by the party filing the amendment unless the Court otherwise orders. Renke J. noted that Rule 10.33 sets out the factors the Court may consider when making a costs award, but did not award Costs to the Plaintiff for the successful Application to amend the Claim.

Justice Renke also considered the issue of read-ins. His Lordship applied Rule 5.31 which sets out the requirements for the use of transcript evidence from Questioning, and determined that the evidence from one of the Defendants did not admit any factual propositions advanced by the Plaintiff, nor was the Defendant precluded from contradicting the Plaintiff’s propositions.

Following mixed results between the parties with respect to the substantive issues, Renke J. considered Costs between the parties and determined that, based on Rule 10.31(4), the Court may adjust the amount payable between the parties by way of deduction or set off if the party liable to pay Costs is also entitled to receive Costs.

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