



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



BMF
                Trading, a Partnership v. Abraxis Holdings Ltd.,









2004 BCCA
            12




Date: 20040112





Docket: CA030184

Between:

BMF Trading,
      a Partnership

Appellant

(
Plaintiff
)

And

Abraxis
      Holdings Ltd., formerly
Four Star Management Ltd. and
Sierra Commodities, Inc.

Respondents

(
Defendants
)












Before:



The Honourable
            Madam Justice Southin





The Honourable
            Mr. Justice Hall





The Honourable
            Mr. Justice Low









G. S. McAlister



Counsel for the Appellant





F. L. Lamer



Counsel for the Respondents





Place and
            Date of Hearing:



Vancouver, British Columbia





2nd and 3rd September, 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





23rd October, 2003





Written Submissions Received









Date of Supplementary Reasons:



12th January, 2004














Supplementary
              Reasons by
:





The Honourable
            Madam Justice Southin





Concurred
              in by:





The Honourable
            Mr. Justice Hall

The Honourable
            Mr. Justice Low





Supplementary Reasons
        for Judgment of the Honourable Madam Justice Southin:

[1]

Subsequent
        to the delivery of our reasons for judgment, 2003 BCCA 559, we received
      written submissions from counsel on two questions.

[2]

The
        first is the question of costs here and below.  Mr. Lamer argues that
        there should be no costs in this Court.  He says, in effect, that the
        success of the appellant in this Court came only from the decision of
        the Court
      to add Williams as a defendant.

[3]

We
        are not of that opinion.  The appellant did persuade us of errors in the
        reasoning of the learned trial judge entitling the appellant to succeed.  That
      being so, the costs in this Court shall follow the event.

[4]

The
        costs of the new trial and the costs of the trial before Madam Justice
      Garson are remitted to the judge hearing the new trial.

[5]

The
        second question is the disposition of the fund in court.  We are of the
        opinion that it is not appropriate to make the order sought by the respondents,
        namely, that one-third of the fund be now paid out to the respondents.  The
        complexity of the issues to be decided in the court below militates against
        any disposition until the new trial is concluded or the parties come
      to some agreement.

[6]

The
        appropriate order is to remit the disposition of the fund to the court
      below.

[7]

If
        during the proceedings below there should be any change in the circumstances
        of the parties as they existed when the application for payment out was
        made to us, the parties have liberty to apply to the court below for such
      order or orders as may be appropriate.

[8]

The
        appellant shall have the costs of the written submissions as it has essentially
      succeeded on those submissions.







The Honourable Madam Justice Southin





I agree:





The Honourable
      Mr. Justice Hall





I agree:





The Honourable
      Mr. Justice Low




