Adam Casey

The defendant brought a motion to compel a representative of a non-party to answer a refused question during an examination under Rule 39.03.

The examination was in relation to the plaintiff's pending motion for an extension of time to file a statement of claim.

The refused question asked whether the non-party would indemnify the defendant if the plaintiff's motion succeeded.

The court dismissed the motion, finding the question was hypothetical, sought a legal conclusion beyond the witness's expertise, and was irrelevant to the pending motion.

This costs endorsement follows the successful appeal by Nedaneg Financial Corporation of the dismissal of its motion for a certificate of pending litigation.

The only issue before the court was the scale of costs to be awarded.

The court found that while there was a strong prima facie case of fraud, the conduct of the respondents was not sufficiently scandalous or outrageous to warrant substantial indemnity costs.

The court awarded Nedaneg costs on a partial indemnity basis in the amount of $80,000, payable within 15 days.

The court allowed Nedaneg Financial Corporation's appeal from the dismissal of its motion for a certificate of pending litigation (CPL) against properties allegedly beneficially owned by Pedram Talebzadeh, despite title being held by others.

The court found that the Associate Judge erred by failing to consider the strong prima facie case of fraud and the relevant context, including evidence that Pedram arranged for others to hold title to defeat creditors.

The court held that the equities and balance of convenience favoured granting the CPL and granted leave to register a CPL on the Cedric and Winona Properties.

The plaintiff developer entered into agreements of purchase and sale with the defendant for commercial properties, which included a mutual lease condition for a leaseback arrangement.

As the condition deadline approached, the defendant assured the plaintiff it would continue negotiating the leases but secretly sought board approval to sell the properties to a third party.

The defendant then terminated the agreements.

The court found the defendant breached its duty of good faith and honest performance, and was liable for negligent misrepresentation.

Applying promissory estoppel, the court held the defendant could not rely on its strict contractual rights to terminate.

The plaintiff was awarded $15.5 million in damages for lost profits.

The plaintiff, Nedaneg Financial Corporation, brought a motion seeking certificates of pending litigation (CPLs) over four properties and, in the alternative, a preservation order.

The plaintiff alleged that the defendant Pedram Talebzadeh was the beneficial owner of the properties and that mortgages over them constituted fraudulent conveyances, intended to defeat a prior judgment.

The court dismissed the motion, finding that the balance of convenience favored the defendants.

The court noted that the properties were not unique, damages were quantifiable and a satisfactory remedy, and the plaintiff had delayed in enforcing its judgment.

The court also found that a preservation order under Rule 45.01 was not the appropriate remedy, as the plaintiff was essentially seeking a Mareva injunction without meeting its higher test, and the plaintiff's prior improper caution registrations weighed against granting equitable relief.

Following a trial where the plaintiffs' claims were dismissed and the defendants' counterclaim was granted in part, the parties made submissions on costs.

The defendants sought substantial indemnity costs based on the plaintiff's oppressive conduct and a prior award of punitive damages.

The court declined to award substantial indemnity costs to the defendants, finding it would result in double compensation, and instead awarded partial indemnity costs subject to a significant discount for time spent on unsuccessful allegations.

The court also awarded substantial indemnity costs to a defendant to the counterclaim who successfully defended against unproven allegations of fraud.

The plaintiff, the former President of a family-run painting corporation, brought an action for oppression and wrongful dismissal after being terminated and removed as a director.

The defendants counterclaimed for breach of fiduciary duty, alleging the plaintiff misappropriated corporate funds, redirected rebates, and performed cash jobs for personal benefit.

The Superior Court of Justice dismissed the plaintiff's claims, finding his termination was justified for cause due to his dishonest conduct.

The court granted the counterclaim in part, ordering the plaintiff to pay $470,000 for redirected rebates and cash jobs, refund unauthorized transfers, disgorge profits, and pay $75,000 in punitive damages for reprehensible self-dealing.