T-3090-73
Macdonalds Consolidated Limited (Plaintiff)
v.
The ship Viajero and Panama Shipping Co. Inc.
and the ship Ravnanger and Westfal-Larsen & Co.
A/S and The Booth Steamship Company Limited
(Defendants)
Trial Division, Mahoney J.—Vancouver, Novem-
ber 1 and 5, 1976.
Practice—Costs—Plaintiff seeking Bullock order or modi
fied Bullock order against third co-defendant—First two
co-defendants successful—Criteria for making order in either
form—Whether Court functus officio.
Plaintiff, suing for damaged shipment involving two vessels,
the V and the R, and the charterer of both of them B, quite
properly joined all three as defendants. A default judgment was
entered against B as a result of its failure to comply with
certain orders of the Court and a motion by B to set the default
judgment aside was denied. Plaintiff then moved to stay pro
ceedings until B's time for appeal expired or the appeal is
disposed of. The stay was granted on condition that the plaintiff
discontinue its action against the ship V and its owners and
against the ship R and its owners if B failed to appeal against
the default judgment or was unsuccessful in doing so. That
appeal is still pending.
Held, the Court is not functus officio, since the matter has
not gone to trial and it has made no judgment as to damages. B
by its own default, has become the sole unsuccessful co-defend
ant and cannot be heard to say that it was not entirely
responsible. The plaintiff may either file a discontinuance
against W-L before the signing of the judgment herein or
provide in the judgment for dismissal of the action against the
R without costs. There is no reason to put W-L and the
plaintiff both in the position of having to seek to enforce a
judgment against B in another jurisdiction and the plaintiff is
already in that position.
MacLeod v. Great West Distributors Limited [1941] 3
W.W.R. 827, applied. Haibloom v. Rocky Mountain
Tours Transport Limited (1951) 3 W.W.R. (N.S.) 201
and Bullock v. London General Omnibus Company [1907]
1 K.B. 264 (C.A.), referred to.
MOTION for Bullock order.
COUNSEL:
D. F. McEwen for plaintiff.
P. D. Lowry for defendant Westfal-Larsen &
Co. A/S.
B. S. Lee for defendant The Booth Steamship
Co. Ltd.
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for plaintiff.
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for defendant Westfal-Lars-
en & Co. A/S.
Campney & Murphy, Vancouver, for defend
ant The Booth Steamship Co. Ltd.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The plaintiff seeks an order dis
missing its action as against the defendant, West-
fal-Larsen & Co. A/S and requiring that any costs
awarded to that defendant be recovered directly
from the defendant, The Booth Steamship Com
pany Limited or, in the alternative, if initially
payable by the plaintiff, that they be recoverable
by the plaintiff from Booth. It is the award of costs
that is in dispute. Booth opposes both alternatives.
Westfal-Larsen wants its costs from the plaintiff
and has no interest in whether or not the plaintiff
recovers them from Booth but does not want to be
in the position of itself recovering them from
Booth. The order as to costs preferred by the
plaintiff is a modified Bullock order and the alter
native a Bullock order'.
I accept the criteria stated by Bury D.C.J. in
MacLeod v. Great West Distributors Limited 2 :
To justify an order in either form the facts must satisfy the
Judge, in the exercise of his discretion: (1) That it was, in the
circumstances of the case, reasonable for plaintiff to join the
successful defendant ...;
(2) That there is no good cause for depriving the successful
defendant of his costs ...; and
(3) That as between the co-defendants the unsuccessful
defendant was wholly responsible for the action ...
The plaintiff sued as the result of the delivery to
it, in Vancouver, B.C. of a damaged shipment
' Bullock v. London General Omnibus Company [1907] 1
K.B. 264 (C.A.).
2 [1941] 3 W.W.R. 827 at p. 829.
from and under bills of lading issued at Manaus,
Brazil. The Viajero, owned by the defendant,
Panama Shipping Co. Inc., took the shipment on
board at Manaus and carried it down the Amazon
to Belem where it was transferred to the Ravnang-
er, owned by Westfal-Larsen. Both ships were
under charter to Booth. It was, in the circum
stances, entirely reasonable for the plaintiff to join
all of the defendants.
There is no suggestion whatever that Westfal-
Larsen is not entitled to its costs. The only ques
tion is whether, in the circumstances, and assum
ing that the Court is not functus officio, the Court
can reasonably conclude that, as between Booth
and Westfal-Larsen, the former was wholly
responsible for the action.
As a result of Booth's failure to comply with
certain orders of the Court, its defence was
ordered struck out and a default judgment entered
against it for damages to be assessed on a refer
ence. A motion by Booth to set the default judg
ment aside was denied. The plaintiff then moved to
stay proceedings until the time for appeal from
that denial had expired or until, if taken, the
appeal was disposed of. The stay was granted by
Mr. Justice Addy in the following terms:
On consent of all parties, and upon the undertaking of
counsel on behalf of the Plaintiff to
(1) forthwith file discontinuance of this action against the
ship Viajero and against the Panama Shipping Co. Inc.
(2) In the event of there being no appeal by Booth Steam
ship Co. Ltd. against my Order of the 10th of March 1976,
or of the ultimate appeal being unsuccessful, to then forth
with discontinue or cause to be dismissed its action against
the Defendants Westfal-Larsen & Co. A/S and the ship
Ravnanger, subject to any order which the Court may be
pleased to make as to costs.
The discontinuance against Panama Shipping
and the Viajero was duly filed. The appeal was
taken and was dismissed. The assessment of dam
ages was the subject of a referee's report in respect
of which Booth appealed to this Court. Booth then
requested, with the plaintiff's consent, that the
appeal from the referee's report be adjourned sine
die pending the outcome of the appeal from Mr.
Justice Addy's order of March 10, 1976. That is
where it presently rests.
The proposition that this Court is functus
officio is utterly without merit having regard to
the express terms of Mr. Justice Addy's order, to
which Booth consented, and to the fact that the
assessment of damages has yet to be resolved into
a judgment of the Court.
The matter did not go to trial. If discoveries
were held, they are not before me. I have no
evidence that, as between Booth and Westfal-Lars-
en, Booth was entirely responsible and Westfal-
Larsen entirely blameless for the loss that gave rise
to the action. However, by its default, Booth has
put itself in the position of being the unsuccessful
co-defendant and has put Westfal-Larsen in the
position of being a successful co-defendant. Booth
cannot now be heard to say that, as against West-
fal-Larsen, it was not entirely responsible.
The situation here is not dissimilar to that dealt
with by Clinton J. Ford J. in Haibloom v. Rocky
Mountain Tours Transport Limited 3 . There, two
of four co-defendants paid a sum into court in full
settlement of the plaintiff's claim. It was accepted.
The learned Judge held that the joinder of one of
the remaining co-defendants had not been reason
able and directed that his costs be paid by the
plaintiffs. As to the other, he held [at page 206]:
... I think it just that the two first-named defendants should
pay his costs. In reaching this conclusion, I have in mind that in
the result they have settled the action, and put him in the
position, as against themselves, of a successful co-defendant.
As to the form of the order: whether modified or
pristine Bullock, I think that I should give effect to
Westfal-Larsen's position. I rather doubt that any
real problems would ensue upon a modified Bul
lock order however, Booth is resident outside
Canada, and there appears no reason at all to put
the plaintiff and Westfal-Larsen, even in theory, in
the position of each enforcing a judgment in
another jurisdiction. The plaintiff is in that posi-
3 (1951) 3 W.W.R. (N.S.) 201.
tion anyway.
I call the plaintiff's attention to the express
undertaking, recited in Mr. Justice Addy's order,
that it would discontinue or cause to be dismissed
its action against the Ravnanger which, I under
stand, was never served with the statement of
claim. This motion does not seek such a dismissal;
this may be an oversight or the plaintiff may
intend to file a discontinuance. The undertaking
should be fulfilled; the plaintiff may either file a
discontinuance prior to the signing of judgment
herein, or provide in the judgment for the dismis
sal of the action against the Ravnanger without
costs.
The plaintiff may prepare and submit a form of
judgment in accordance with these reasons. There
will be no costs in respect of this application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.