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Vendor ordered to pay $175,000 real estate deposit into court under Rule 45.02 pending litigation.
The plaintiff purchaser brought a motion under Rule 45.02 for an order requiring the defendant vendor to pay into court the deposit from an aborted real estate transaction.
The transaction failed to close because the vendor did not complete required electrical upgrades.
The plaintiff mistakenly signed a mutual release directing the deposit to the vendor, and the vendor's agent disbursed the funds.
The court found the plaintiff met the test for Rule 45.02, establishing a claim to a specific fund, a serious issue to be tried regarding the mistaken release, and that the balance of convenience favoured preserving the remaining $175,000 held by the vendor.
Motion for leave to issue a certificate of pending litigation dismissed as damages were an adequate remedy.
The plaintiff, a land developer, brought a motion for leave to issue a certificate of pending litigation (CPL) over one of the defendant's properties, 5318 Stouffville Road, based on a right of first refusal (ROFR) in a development management agreement.
The defendant opposed the motion, arguing the ROFR had terminated, was void for vagueness, or was not triggered as the property was part of a larger package.
The court found that while the plaintiff raised a triable issue regarding the ROFR, it failed to demonstrate the uniqueness of the land or that damages would be an inadequate remedy.
Considering the defendant's advanced age and reliance on the property for retirement, the court concluded that the harm to the defendant from a CPL outweighed the harm to the plaintiff, whose losses could be compensated by damages.
The motion for leave to issue a CPL was dismissed.
