



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Chin v. Hegarty,









2019 BCCA 7




Date: 20190107

Dockets:
CA44935; CA44987

Docket: CA44935



Between:

Chuan Yeen Chin

Appellant

(Claimant)

And

Peter John Hegarty

Respondent

(Respondent)

- and -

Docket: CA44987

Between:

Chuan Yeen Chin

Appellant

(Claimant)

And

Peter John Hegarty

Respondent

(Respondent)






Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Dickson

The Honourable Madam Justice Griffin




Supplementary Reasons
to
Chin v. Hegarty
, 2018 BCCA 451.




Counsel for the Appellant:



H.M. Dale





The Respondent, appearing in person:



P.J. Hegarty





Place and Date of Hearing:



Vancouver, British
  Columbia

November 14, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

November 14, 2018







Written Submissions received:



November 22, 2018







Date of Supplementary Judgment:



January 7, 2019











Supplementary Reasons of the Court








Summary:

The appellant was successful
in the appeals, resulting in an order setting aside three orders in the Supreme
Court of British Columbia. Apart from costs of the appellants application to
extend time to appeal which were ordered in favour of the respondent when the
extension was granted, the appellant, having been successful, is entitled to
costs of the appeals and of the applications giving rise to the orders
appealed.

Supplementary Reasons for
Judgment of the Court:

[1]

These supplementary reasons address the costs issues arising from our
order of November 14, 2018, whereby we set aside three orders made by Mr. Justice
Dley:

·

an
order pronounced October 14, 2016, which varied a consent order relating to the
sale of a condominium and dismissed an application brought by Ms. Chin
under s. 221 of the
Family Law Act
, S.B.C. 2011, c. 25, seeking
to prohibit Mr. Hegarty from pursuing his attempts at variation;

·

an
order pronounced November 18, 2016, which awarded fixed costs to Mr. Hegarty
for the proceedings related to the October 14
th
order; and

·

an order pronounced November 1, 2017, following Mr. Hegartys
election to acquire the condominium, stipulating that Ms. Chin would be responsible
for a portion of the applicable capital gains, budget repair levy and marketing
costs.

[2]

Ms. Chin seeks both costs of the appeal and costs of the applications
before Justice Dley that gave rise to the orders appealed.

[3]

Mr. Hegarty seeks costs related to Ms. Chins application for
an extension of time to appeal, an application granted by Chief Justice Bauman.
Mr. Hegarty otherwise seeks an order that the parties bear their own costs
of the appeal and of the applications before Justice Dley. He contends that the
parties could have avoided significant expenditures had Ms. Chin appealed
the October 14
th
order in a timely fashion.

[4]

As to the application for an extension of time to appeal, costs were
awarded to Mr. Hegarty by the Chief Justice, and that order stands. On the
other costs of the appeal, we see no reason to stray from the general rule that
costs of an appeal are payable to the successful appellant:
Catalyst Paper
Corporation v. Companhia de Navegação Norsul
, 2009 BCCA 16. Ms. Chin
is accordingly entitled to costs of the appeal, with the exception of the costs
already ordered in Mr. Hegartys favour determined by Chief Justice Bauman.

[5]

As to the proceedings in the Supreme Court of British Columbia, Ms. Chin
is entitled to costs of the applications relating to the three orders mentioned
above, on the premise that trial costs most usually follow the results of an
appeal:
Rick v. Brandsema
, 2008 BCCA 96;
Murphy v.
Murphy
, 2007 BCCA 591. Ms. Chin was successful on
appeal in setting aside all of the orders in issue, with the result that the
central application brought before Mr. Justice Dley has now been decided in
her favour.

[6]

Mr. Hegarty contends that we should depart from the usual approach
because Ms. Chins late filing of the appeal occasioned wasted expenditures
concerning the sale of the property. The root cause of the expenditures,
however, lies with the orders that were successfully appealed by Ms. Chin.
It seems to us that Mr. Hegarty cannot complain of money spent under an
order or orders made on his application that should not have been made in the
first place.

[7]

In conclusion, Ms. Chin shall have her costs of the applications in
the Supreme Court before Justice Dley and, with the exception of costs ordered
by Chief Justice Bauman for the extension of time application, costs of the
appeal.




The Honourable Madam Justice
  Saunders





The Honourable Madam Justice
  Dickson





The Honourable Madam Justice Griffin







