Ben Tustain

The applicant obtained ex-parte Mareva and Norwich orders against his brother and sister-in-law, alleging they mismanaged a jointly owned corporation and breached an oral trust agreement.

The respondents moved to set aside the orders, arguing material non-disclosure and failure to meet the evidentiary threshold.

The court agreed, finding the applicant failed to disclose relevant correspondence and that contradictory evidence precluded a strong prima facie case.

However, given evidence of potential misappropriation, the court ordered a forensic accounting and froze the respondents' real property pending the investigation.

The applicants brought a motion for leave to appeal the orders of Perell J. dated March 29, 2019, and June 5, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents in the fixed amount of $11,000.