Nu Stream Realty Inc. v., 2018 BCSC 911

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nu Stream Realty Inc. v. 1116191 B.C. Ltd., 2018 BCSC 911 Date: 20180604 Docket: S184008 Registry: Vancouver Between: Nu Stream Realty Inc., Nu Stream Marketing Inc., J. Can Investment Ltd., 1105550 B.C. Ltd., Zhijian (Anna) Zhang, Nevin L. Low Plaintiffs And 1116191 B.C. Ltd., 1067973 B.C. Ltd., Xiao Hong Huang, Ze Wen Zong Defendants Before: The Honourable Mr. Justice Marchand Reasons for Judgment Counsel for the Plaintiffs: J. Reiterowski B. Pugsley, Articled Student Counsel for the Defendants: S.M. Mackenzie Place and Date of Hearing: Vancouver, B.C.

May 3, 2018 Place and Date of Judgment: Vancouver, B.C. June 4, 2018 Introduction [ 1 ] Broadly speaking, the plaintiffs are realtors who, through a series of transactions, were to earn sizeable consulting/referral fees on the sale of three properties in Coquitlam to the defendants. When it appeared that the defendants would be unable to secure the necessary financing to close, the plaintiffs agreed to forego the payment of their fees and instead become “investors” in the defendants’ residential and commercial development project.

In return for their “investment”, the plaintiffs were to receive four penthouse suites and a right of first refusal on two other suites in the completed development. [ 2 ] The plaintiffs also allege that they entered further oral contracts with the defendants to market and sell strata lots in the completed development. [ 3 ] The plaintiffs became concerned that the defendants would be unable to secure further financing for the project and learned that the defendants intended to retain another firm to market and sell strata lots in the completed development.

Believing that they would be “cut out” from the development, they demanded repayment of the original amount of their consulting/referral fees, and other amounts. [ 4 ] In the meantime, in order to “protect [their] interests” in the properties, on March 22, 2018, the plaintiffs filed a Notice of Civil Claim (“NOCC”) claiming an equitable interest in the properties.

On the same date, the plaintiffs obtained certificates of pending litigation (“CPLs”) and registered them against the titles to the three properties. [ 5 ] The defendants have applied to cancel the CPLs and dismiss the plaintiffs’ claims that they have an equitable interest in the properties. The defendants rely on Rules 9-5, 9-6 and 9-7 of the Supreme Court Civil Rules as well as ss. 215 , 254 , 256 and 257 of the Land Title Act , R.S.B.C. 1996, c. 250 [“ LTA ”]. Issues [ 6 ] The issues are: 1.

Do the facts alleged by the plaintiffs in the NOCC support a claim for an interest in the properties as required by s. 215 of the LTA ?

2. Should the plaintiffs’ claims be struck under Rule 9-5(1) as being scandalous, frivolous, vexatious or otherwise an abuse of process? 3. Should the plaintiffs’ claims be dismissed under Rule 9-6(4) or Rule 9-7? 4. Have the defendants established that the CPLs have caused or are likely to cause them “hardship and inconvenience” such that the CPLs should be cancelled under ss. 256 and 257 of the LTA and, if so, with what security? Background [ 7 ] The evidentiary record before me is incomplete. The parties have not disclosed a number of relevant documents or complete copies of other relevant documents.

Further, the parties have not fully or clearly expressed certain material facts. Nevertheless, from my review of the affidavits and exhibits, and drawing some reasonable inferences, I believe the following is a fairly accurate

summary of the relevant background. [ 8 ] The plaintiffs, Zhijian (Anna) Zhang and Nevin Low, are realtors with the plaintiffs, Nu Stream Realty Inc. and/or Nu Stream Marketing Inc. (collectively “Nu Stream”). The plaintiff, J. Can. Investment Ltd. (“J. Can.”), is a holding company owned by Ms. Zhang. The plaintiff, 1105550 B.C. Ltd. (“110”), is a holding company owned by Mr. Low. [ 9 ] The defendant, 1067973 B.C. Ltd. (“106”), owns the shares of the defendant, 1116191 B.C.

Ltd. (“111”). 111 is the owner of three lots located at the Lougheed Highway and Blue Mountain Street in Coquitlam (the “Properties”), legally described as: • Lot “D” District Lot 1 Group 1 New Westminster District Plan 2716; • Lot “C” District Lot 1 Group 1 New Westminster District Plan 2716; and • Lot “E” Except: Firstly, Part on Statutory Right of Way Plan 61371, Secondly, Part on Statutory Right of Way Plan 5033 District Lot 1 Group 1 New Westminster District Plan 2716. [ 10 ] The defendants, Xiao Hong Huang and Ze Wen Zong, are the directors of the corporate defendants. [ 11 ] The defendants are developing a residential and commercial project on the Properties. [ 12 ] In March 2017, Ms.

Zhang and Mr. Low presented Ms. Huang, Mr. Zong and 106 with an opportunity to purchase the Properties for $14.8 million. In the middle of April 2017, Ms. Huang, Mr. Zong and 106 informed Ms. Zhang and Mr. Low that they were interested in purchasing the Properties. [ 13 ] On April 23, 2017, James Anil Das entered a contract of purchase and sale to acquire the Properties from 641616 B.C. Ltd. Though the parties did not disclose a complete copy of the contract, it appears that the sale price was $12 million. The contract specifically contemplated Mr. Das assigning the contract to “his nominated company”.

Though there is no direct evidence on this point, it appears that Mr. Das assigned the contract to 111, which, at the time, was wholly owned by him. The closing date for the contract was to be December 15, 2017. [ 14 ] On April 25, 2017, Mr. Das “and/or his nominated company” entered a “Consulting Fee Agreement/Referral Fee Agreement” (“CFA”) with Ms. Zhang and Mr. Low “of Nu Stream Realty Inc.”. The CFA was signed by Ms. Zhang and Mr. Low on behalf of Nu Stream Realty Inc. and by Mr.

Das on behalf of 111. [ 15 ] The CFA provided that a consulting/referral fee of $1,866,666.67 (which is two thirds of $2.8 million) would be paid by Mr. Das and/or 111 in two equal shares to each of Ms. Zhang and Mr. Low or “their respective Personal Real Estate Corporations” on the later of: 1. the closing date of a sale of the Properties; or 2. 106 purchasing 100% of the shares of 111. [ 16 ] On April 26, 2017, 106 entered a share purchase agreement with Mr.

Das to acquire the shares of 111 for $2.8 million, with a completion date of December 15, 2017. [ 17 ] As a result of these transactions, 106 acquired the right to purchase the Properties on December 15, 2017 for a total of $14.8 million, comprised of $2.8 million to acquire 111 and $12 million to complete the contract of purchase sale. Each of Mr. Das, Ms. Zhang and Mr.

Low would ultimately receive one third of the $2.8 million paid by 106 to acquire 111. [ 18 ] Around the same time, the plaintiffs assert that 111 and 106 entered into an oral “Marketing Services Agreement” and an oral listing agreement with Nu Stream. The plaintiffs assert that, under the marketing agreement, Nu Stream would provide marketing services to the defendants’ development project for 0.6 to 0.8% of gross sales.

The plaintiffs assert that, under the listing agreement, Nu Stream would earn commissions “to be finalized but similar or equivalent to 7% on the first $100,000 and 2.25% on the balance, plus GST” on sales of strata lots within the development. The plaintiffs assert these oral agreements were material conditions to the transactions by which 106 acquired the right to purchase the Properties. The defendants deny the existence of any oral agreements. [ 19 ] Prior to December 15, 2017, the defendants informed Ms. Zhang and Mr.

Low that they were having difficulties obtaining the funds necessary to close the share purchase agreement and contract of purchase and sale. In order to facilitate closing, Ms. Zhang and Mr. Low offered to waive their consulting/referral fees in return for strata units in the completed project and the parties entered a series of further transactions.

[ 20 ] On December 14, 2017, by way of addendum to the April 23, 2017 contract of purchase and sale, 641616 B.C. Ltd. agreed to move the closing date for the sale of the Properties to 111 to December 18, 2017. [ 21 ] Also on December 14, 2017, the defendants secured $12.3 million in financing from Romspen Investment Corporation (“Romspen”), with annual interest to be paid at 11.75%. The Romspen loan was secured by way of mortgage against the titles to the Properties and a number of other properties in Vancouver.

Under the terms of the loan, 111 was to pay down the principal of the loan by a minimum “balloon payment” of $2.5 million on or before March 15, 2018. [ 22 ] The loan proceeds were advanced and 111 completed its acquisition of the Properties on December 18, 2017. [ 23 ] On December 19, 2017, the corporate defendants entered a “Private Investment Agreement” (“PIA”) with J. Can and/or Ms. Zhang, and 110 and/or Mr. Low. Under the terms of the PIA, Ms. Zhang and Mr.

Low waived their consulting/referral fees (which totalled $1,866,666.67) “in exchange for” four specified strata lots and a right of first refusal on two additional strata lots in the to-be- built development. The waiver of the consulting/referral fees was classified as “investment amounts” into the development project. The strata lots specified for Ms. Zhang and Mr. Low were valued at a total of $1,866,666.66. Ms. Huang personally guaranteed the amounts owed to Ms. Zhang and Mr. Low. [ 24 ] Concurrently, on December 19, 2017, Mr. Das and 106 executed an addendum to the share purchase agreement, and Mr. Das, Ms.

Zhang and Mr. Low executed an addendum to the CFA. [ 25 ] The addendum to the share purchase agreement reduced the purchase price for the shares in 111 to $933,333.33 to be paid in two installments, with the first installment of $300,000 to be paid by January 15, 2018 and the second installment of $633,333.33 to be paid by February 28, 2018. 106 paid these installments to Mr. Das. [ 26 ] Under the terms of the addendum to the CFA, Ms. Zhang and Mr. Low formally waived their original consulting/referral fees totalling $1,866,666.67. [ 27 ] In 2018, Ms. Zhang and Mr.

Low became concerned that the defendants would not be able to make their loan payments. Ms. Zhang and Mr. Low also became concerned that they would not receive their strata units nor any fees under the alleged oral marketing and listing agreements. [ 28 ] On March 3, 2018, Ms. Zhang had coffee with Ms. Huang and Mr. Zong to discuss the development and marketing of the Properties. Ms. Huang and Mr. Zong apparently confirmed that they may not be able to make the required payments on the Romspen loan and did not intend to retain Ms. Zhang and Mr.

Low to market the Properties. [ 29 ] Fearing they would be “cut out” of the development project, on March 6, 2017, Ms. Zhang and Mr. Low demanded payment from the defendants of the full amount of their waived consulting fees plus an additional $178,000 “representing the works done pursuant to the Marketing Agreement” by March 8, 2018. Ms. Zhang and Mr. Low indicated that the “debt” owed by the defendants to Ms. Zhang and Mr. Low could be secured “by way of conversion to a mortgage”. Absent an agreement to their demands, Ms. Zhang and Mr.

Low indicated they would file a NOCC and register CPLs against the titles to the Properties. [ 30 ] On March 12, 2018, the defendants declined to abide by the demand made by Ms. Zhang and Mr. Low. The defendants specifically indicated they would defend any claim commenced by Ms. Zhang and Mr. Low, and seek special costs if the defendants had to apply to discharge any CPLs. [ 31 ] The plaintiffs filed a previous NOCC on March 12, 2018 and an Amended NOCC on March 14, 2018.

They obtained CPLs in relation to both claims but the Land Title Office refused to register them against the titles to the Properties on three separate occasions. The first two attempts to register the CPLs likely failed due to errors in property descriptions and the third attempt likely failed due to the Amended NOCC not including any claim to an interest in land. [ 32 ] Without discontinuing the previous NOCC, the plaintiffs filed the current NOCC and registered the CPLs at issue on March 22, 2018. [ 33 ] The defendants have not made the balloon payment to Romspen.

The defendants have, however, been working with a mortgage broker to obtain alternate financing to payout the Romspen loan and finance the development project on more favourable terms. The defendants assert that the CPLs are causing them hardship in that they cannot obtain alternate financing, which may result in the development project coming to a halt. Analysis General Principles Regarding the Cancellation of a CPL [ 34 ] The defendants advance all possible routes to cancel the CPLs registered against the titles to the Properties, short of proceeding to a full trial.

Most of the possible routes relate in some way to the existence of a claim to an interest in the Properties but one does not. Fortunately, there is recent guidance from the Court of Appeal regarding the requirements of each possible route. [ 35 ] In Berthin v. Berthin , 2018 BCCA 57 , the Court of Appeal overturned the decision of the chambers judge who had purported to exercise an inherent jurisdiction to immediately cancel a CPL. The chambers judge had struck the plaintiff’s claims under Rule 9-5(1) on the basis that it was plain and obvious that they disclosed no reasonable cause of action.

In writing for the Court of Appeal, Justice Fenlon clarified the requirements of the various routes available to parties wishing to cancel a CPL. [ 36 ] From Berthin , I distill the following general principles:

1. Section 215(1) of the LTA empowers a person who has commenced a proceeding and who is claiming an interest in land to register a CPL against the land. The court has jurisdiction to immediately cancel a CPL when the proceeding does not meet the threshold requirement of claiming an interest in land: at paras. 35-40 and 44. 2. Rule 9-5 empowers the court to strike a pleading for various reasons, including that it discloses no reasonable claim or defence, is unnecessary, scandalous, frivolous or vexatious or is, otherwise, an abuse of the process of the court.

If a claim supporting an interest in land is struck under Rule 9-5, the court does not have inherent jurisdiction to immediately cancel a CPL. Rather, the CPL may only be removed in accordance with s. 254 of the LTA , which requires a CPL to remain on title until the unsuccessful party exhausts his or her avenues of appeal: at paras. 40-44. 3. Rule 9-6(4) empowers the court to summarily dismiss a claim to an interest in land where there is no triable issue. If the claim is summarily dismissed, the CPL may only be removed in accordance with s. 254 of the LTA : at paras. 35-40 and 44. 4.

Rule 9-7 empowers the court to dismiss a claim to an interest in land on the merits after a

summary trial. If the claim is dismissed, the CPL may only be removed in accordance with s. 254 of the LTA : at para. 44. 5. As an alternative to the above routes, ss. 256 and 257 of the LTA empower a person who is the registered owner of an interest in land against which a CPL has been registered to apply for an order cancelling the registration of the CPL on the basis of “hardship and inconvenience”. If successful, the court has the jurisdiction to make an order immediately cancelling the CPL: at paras. 41-44.

Have the Plaintiffs Claimed an Interest in Land? [ 37 ] The NOCC that is currently before me fully recites the terms of the PIA. The essence of the PIA is that the plaintiffs waived their right to receive $1,866,666.67 in consulting fees from Mr. Das in exchange for four to-be-built strata units and a right of first refusal on two other to-be-built strata units within the defendants’ development on the Properties. The PIA characterizes the waiver of fees as an “investment” in the development.

The NOCC pleads that by waiving their fees, the plaintiffs acquired an equitable interest in the Properties. [ 38 ] Unfortunately, the parties cited no case law to assist me in discerning whether the exchange contemplated by the PIA does or does not create an equitable interest in the Properties. Perhaps that is because the circumstances are unique and there is no case law directly on point. Nevertheless, the situation has some similarities to cases dealing with the pre-sale of strata units and it would have been helpful for the parties to have cited cases such as bcIMC Construction Fund Corp. v.

Chandler Homer Street Ventures Ltd. , 2008 BCSC 897 and/or Pan Canadian Mortgage Group Inc. v. 679972 B.C. Ltd. , 2014 BCCA 113 . [ 39 ] In bcIMC , the Court explained that pre-sale purchasers are entitled to an equitable interest in land the moment the contract for purchase and sale is entered into, subject to the requirement that they establish they would be entitled to specific performance of the contract.

The Court also explained that specific performance is not available when the property does not exist, such as in the present circumstances: paras 68-78. bcIMC appears to support the defendants’ position. [ 40 ] In Pan Canadian , the Court of Appeal held that a pre-sale purchaser may be entitled to an equitable interest in land known as a “purchaser’s lien” when the pre-sale purchaser has entered a binding contract even though the purchaser may not be entitled to specific performance.

The Court of Appeal characterized the purchaser’s lien as a security interest against the property to the extent of money paid plus interest and costs: paras. 1 and 32. Pan Canadian appears to support the plaintiffs’ position. [ 41 ] I considered asking for further submissions from the parties on the real issue, namely whether the exchange in the PIA creates an equitable interest in the Properties, but decided against doing so. In view of my conclusion regarding the defendants’ application to cancel the CPLs under ss. 256 and 257 of the LTA , delving more deeply into this topic is unnecessary.

Furthermore, in the time it would take for the parties to find a date and make further submissions, have me render a decision and, if deciding the case under Rules 9-5, 9-6 and/or 9-7, wait for rights of appeal to be exhausted, the defendants’ development project may be seriously jeopardized. [ 42 ] Suffice to say that, in view of the submissions, I am not prepared to determine whether the NOCC before me meets the threshold requirements of s. 215 of the LTA , is frivolous, vexatious or an abuse of process under Rule 9 - 5 , or discloses no triable issue under Rule 9 - 6(4) .

In addition to my concerns about the adequacy of the parties’ submissions, there are also conflicts in the evidence. In these circumstances, I am also not prepared to make a decision on the merits under Rule 9-7. Instead, I will resort to ss. 256 and 257 of the LTA . Should the CPLs be Cancelled Under ss. 256 and 257 of the LTA ? [ 43 ] Sections 256 and 257 of the LTA provide, in part, as follows: Cancellation of certificate of pending litigation on other grounds 256

(1) A person who is the registered owner of or claims to be entitled to an estate or interest in land against which a certificate of pending litigation has been registered may, on setting out in an affidavit (

a) particulars of the registration of the certificate of pending litigation, (

b) that hardship and inconvenience are experienced or are likely to be experienced by the registration, and (

c) the grounds for those statements, apply for an order that the registration of the certificate be cancelled.

… Power of court to order cancellation 257

(1) On the hearing of the application referred to in section 256 (1), the court (

a) may order the cancellation of the registration of the certificate of pending litigation either in whole or in part, on (

i) being satisfied that an order requiring security to be given is proper in the circumstances and that damages will provide adequate relief to the party in whose name the certificate of pending litigation has been registered, and (ii) the applicant giving to the party the security so ordered in an amount satisfactory to the court, or (

b) may refuse to order the cancellation of the registration, and in that case may order the party (

i) to enter into an undertaking to abide by any order that the court may make as to damages properly payable to the owner as a result of the registration of the certificate of pending litigation, and (ii) to give security in an amount satisfactory to the court and conditioned on the fulfillment of the undertaking and compliance with further terms and conditions, if any, the court may consider proper. …

(3) In setting the amount of the security to be given, the court may take into consideration the probability of the party's success in the action in respect of which the certificate of pending litigation was registered. [ 44 ] In cases of hardship and inconvenience, these sections empower the court to cancel the registration of a CPL and require alternate security. In determining whether to do so, the court may consider whether damages would be an adequate remedy, and the strength or weakness of the plaintiff’s case.

Particularly where the plaintiff’s claim is weak, an undertaking to pay damages may provide adequate alternate security: 0861695 B.C. Ltd. v. Meola , 2013 BCSC 121 at paras. 10-11 . [ 45 ] In Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd. , 2014 BCCA 388 at para. 28 , the Court of Appeal discussed the degree of hardship and inconvenience that is required before the registration of a CPL is cancelled: [28] As a preliminary matter the applicant must show that it is experiencing or likely to experience “hardship and inconvenience” as a result of the registration of the CPL.

It appears that the degree of hardship required is the subject of disagreement in the Supreme Court of British Columbia. While some judges have proceeded on the basis that the hardship need not be “significant” (see, e.g., Enigma Investments Corp. v. Henderson Land Holdings (Canada) Ltd. 2007 BCSC 1379 , and 0966349 B.C. Ltd. v. Shell Canada Limited , Reasons dated February 28, 2014, New Westminster Docket S151234), others have required “severe suffering” (see, e.g., the lower court decision in Liquor Barn Income Fund v.

Mather 2009 BCSC 1092 , at para. 7 .) The Shorter Oxford Dictionary (6th ed., 2007) defines “hardship” to mean “the quality of being hard to bear” or “severe suffering or privation”; “significant” to mean “important, notable; consequential”; and “insignificant” to mean “of no importance; trivial, trifling” or “meaningless”. To the extent that these or other decisions of the trial court suggest that “hardship” in s. 256(1) may be met by proof of hardship that is “insignificant” or “not significant”, I would disagree.

I doubt that the Legislature intended the threshold under s. 256 to be surmounted by proof of hardship that is only “trifling”. On the other hand, I agree that a court should not be “exacting” in its analysis of hardship and inconvenience. [ 46 ] After carefully considering all of the circumstances, I am ordering that the registration of the CPLs against the titles to the Properties be cancelled, on conditions.

My reasons for cancelling the registration of the CPLs and imposing conditions follow. [ 47 ] For starters, the affidavit evidence satisfies me that the CPLs are causing the defendants hardship and inconvenience. Specifically, I accept that the CPLs are having an impact on the defendants’ ability to obtain alternate financing at more favourable rates. Without alternate financing, the defendants are unable to make the balloon payment, repay the Romspen loan, and finance construction of the development project.

In the absence of alternate and more favourable financing, I accept that the development project will be delayed and eventually come to a halt. If the project is not completed, the defendants will suffer great harm. [ 48 ] Though the cancellation of the CPLs heightens some risks faced by the plaintiffs, the plaintiffs face other risks if the development project is not completed due to the registration of the CPLs.

I consider it self-evident that the plaintiffs’ best chance of being made whole is for the development project to be completed. [ 49 ] The plaintiffs’ claims regarding the existence of oral marketing and listing agreements are weak. On Mr. Nevin’s own evidence, the terms of the alleged agreements lack certainty. Further, it may be hard for the court to accept that sophisticated parties who reduced various agreements to writing would not have done likewise with respect to such important matters. [ 50 ] Other than the alleged breach of the oral marketing and listing agreements, no other breach is alleged.

In fact, at the heart of the matter, it appears that the defendants are doing their utmost to fulfill their obligation to complete the development project. If they are able to do so, there is no reason to think they will not live up to their clear contractual obligation to convey four specific strata units to Ms. Zhang and Mr. Low and offer them a right of first refusal on two other specific units. [ 51 ] If the plaintiffs had not agreed to waive their fees, the share purchase agreement and contract of purchase and sale would not have completed in December 2017 and the plaintiffs would have received nothing.

Instead, the plaintiffs waived their fees in the expectation of receiving very valuable strata units, when completed. In doing so, the plaintiffs took a measured risk and stood to reap a substantial reward. They could have but did not take security for their “investment”. By design, the defendants filed their NOCC and registered their CPLs to obtain the very security they failed to obtain when entering the PIA, only a few short months previously.

[ 52 ] Regarding the adequacy of damages, from the outset, the plaintiffs themselves have sought repayment of their “investment” plus other amounts. Clearly, the plaintiffs consider damages to be an adequate remedy. I agree. [ 53 ] Regarding security, I consider an undertaking to pay damages to be adequate. In reaching this conclusion, I note that Ms. Huang guaranteed to be personally liable for any amounts owing by 111 and 106 to the plaintiffs. Furthermore, based on the Romspen commitment letter, it appears that the defendants have substantial equity in other properties.

In other words, if it comes to it, it appears that the defendants will be able to pay an award of damages. [ 54 ] Finally, if the circumstances change, the equities may change. So, for example, if there is a pending sale of the Properties or the Properties go into foreclosure, the plaintiffs could seek to register new CPLs against the titles to the properties at that time. [ 55 ] To prevent the premature or otherwise inappropriate registration of CPLs in the future, I am prohibiting the plaintiffs from registering any further CPLs against the titles to the Properties without leave of the court.

This order will ensure that, if the parties return to court, they will come prepared to address whether the PIA creates an equitable interest in the land before any further CPLs are registered. [ 56 ] To enable the plaintiffs to assess whether to seek to register CPLs against the titles to the Properties in the future, I am ordering that the registration of the CPLs against the titles to the properties be cancelled upon the defendants providing an undertaking to provide certain information to the plaintiffs as will be outlined below.

Conclusion and Order [ 57 ] For all of these reasons, I make the following orders: 1. The registration of the CPLs against the titles to the Properties is cancelled upon the defendants providing the following undertakings: a. to pay damages that are proven and ordered to be paid to the plaintiffs as a result of the cancellations; and b. to immediately inform the plaintiffs of the particulars of any listing of the Properties for sale, any pending sale of 111 or the Properties, any foreclosure proceedings in relation to the Properties and/or any change in financing in relation to the Properties. 2.

The plaintiffs are prohibited from registering CPLs against the titles to the Properties to secure the same claim, without leave of the court. [ 58 ] I leave the issue of costs to the discretion of the trial judge. [ 59 ] Before concluding, I note that, at the time of the hearing, the plaintiffs had two “live” NOCCs dealing with the same circumstances and seeking similar relief. I understood that the plaintiffs intended to discontinue the first NOCC. I trust that if that has not already occurred, it will occur. “L. S. Marchand J.” MARCHAND J.