Date: 20120308
Docket: A-436-11
Citation: 2012 FCA
79
Present: PELLETIER J.A.
BETWEEN:
CALOGERAS
& MASTER SUPPLIES INC.
Appellant
and
CERES HELLENIC SHIPPING ENTERPRISES LTD.
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP LAURENT" and THE
SHIP "CAP LAURENT"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP ROMUALD" and THE
SHIP "CAP ROMUALD"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP GEORGES" and THE
SHIP "CAP GEORGES"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP LEON" and THE
SHIP "CAP LEON"
and ALL OWNERS and OTHERS INTERESTED IN
THE SHIP "CAP JEAN" and THE
SHIP "CAP JEAN"
and ALL OWNERS and OTHERS INTERESTED IN
THE SHIP "CAP DIAMANT" and THE
SHIP "CAP DIAMANT"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP PIERRE" and THE SHIP "CAP PIERRE"
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa,
Ontario,
on March 8, 2012.
REASONS
FOR ORDER BY: PELLETIER J.A.
Date: 20120308
Docket: A-436-11
Citation: 2012 FCA 79
Present: PELLETIER
J.A.
BETWEEN:
CALOGERAS & MASTER
SUPPLIES INC.
Appellant
and
CERES HELLENIC SHIPPING ENTERPRISES LTD.
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP LAURENT" and THE
SHIP "CAP LAURENT"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP ROMUALD" and THE
SHIP "CAP ROMUALD"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP GEORGES" and THE
SHIP "CAP GEORGES"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP LEON" and THE SHIP "CAP LEON"
and ALL OWNERS and OTHERS INTERESTED IN
THE SHIP "CAP JEAN" and THE
SHIP "CAP JEAN"
and ALL OWNERS and OTHERS INTERESTED IN
THE SHIP "CAP DIAMANT" and THE
SHIP "CAP DIAMANT"
and THE OWNERS and ALL OTHERS INTERESTED
IN
THE SHIP "CAP PIERRE" and THE
SHIP "CAP PIERRE"
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
Calogeras
and Master Supplies Inc. (Calogeras) supplied goods and supplies to various
vessels under the management of Ceres Hellenic Shipping Enterprises Inc.
(Ceres). When the price of these goods and supplies was not paid, Calogeras
sued Ceres and obtained a warrant for the arrest of Ceres’ vessels. In order
to avoid the arrest of its vessels, Ceres posted bail in the amount of
$1,600,000, secured by a bank guarantee.
[2]
Because it
had no assets in Canada to satisfy a claim for costs,
Calogeras was ordered to pay into Court the sum of $115,000 as security for
costs of the trial, which it did.
[3]
The trial
of the claim was difficult. Calogeras eventually obtained judgment against
Ceres in the amount of $99,171 plus interest at the rate of 5% per annum from
March 1, 2010. The trial judge set over the matter of costs at the request of
the parties.
[4]
Calogeras
appealed from the decision of the Federal Court. This Court ultimately varied
the judgment of the Federal Court by ordering interest to be paid at the rate
of 5% beginning 60 days after the issuance of each of the invoices which was
found to be unpaid and owing.
[5]
In the
interim, the Federal Court rendered its decision with respect to costs. Ceres
had, in the course of the proceedings, made an offer to settle pursuant to Rule
420 of the Federal Courts Rules SOR/98-106 and, in the end result, it
achieved a result which entitled it to enhanced costs from the date of the
service of its offer to settle. Calogeras, as the successful party, was
entitled to its costs, on a party and party basis, up to the date of service of
the offer of settlement. As a result, the Federal Court made an order of costs
in favour of Calogeras in the amount of $35,375, and an order in favour of
Ceres in the amount of $160,690. The Federal Court also ordered that Ceres had
a right to set off the balance of costs owing to it, if any, in excess of the
amount of the posted security for costs against any amount owing to Calogeras
under the judgment pronounced in its favour by the Federal Court.
[6]
When the
cost awards in favour of and against Ceres are netted out, Ceres is entitled to
costs of $123,315. When the $115,000 paid into court as security for costs is
applied to this amount, Ceres has a claim for unpaid costs in the amount of
$8,315. By the terms of the Federal Court’s judgment with respect to costs,
Ceres is entitled to set this amount off against its judgment debt to
Calogeras.
[7]
After the
close of trial but before the Federal Court rendered judgment, Ceres paid into
escrow the sum of $74,739.92, to be held in an interest bearing account and to
be disposed of in accordance with a final judgment of the Federal Court or any
Court sitting on appeal of that judgment. It appears that those funds have now
been paid to Calogeras. The parties appear to be in agreement that a further
amount of $63,000 to $67,000 (depending upon the interest calculation is owing
to Calogeras).
[8]
This
complex history brings us to the present motion by which Ceres seeks a partial
stay of execution of the judgment of the Federal Court with respect to
principal and interest so as to protect its right of set off with respect to
costs or, in the alternative, a further order for security for costs.
[9]
Ceres could
have claimed to exercise its right of set-off against the $75,345.74 held in
escrow, so that the money would have remained in escrow until all claims were
liquidated and resolved, or the funds could have been paid out to Ceres to the
extent of $8,315 with the balance being paid to Calogeras. Given that Ceres
had a concrete opportunity to exercise its right of set off and chose not to
exercise it, I have difficulty concluding that the loss of the opportunity to
exercise that right of set off constitutes irreparable harm. On that ground
alone, the motion for a stay of execution fails.
[10]
This
leaves the motion for an order for security for costs. I am aware, of course,
that such an order was made with respect to the trial of this matter. But this
is a different proceeding and I have no evidence as to the current
circumstances of Calogeras. As a result, I am unable to determine if the
requirements of Rule 416 have been met.
[11]
I would
therefore dismiss the motion for a stay of execution or, in the alternative,
for security for costs with costs to Calogeras.
"J.D.
Denis Pelletier"
Email this Content