Daniel Michael Dryden Enright

Following a successful appeal and dismissal of a cross-appeal, the parties agreed that the appellants were entitled to costs throughout and agreed on the quantum for the application.

The Court of Appeal ordered the respondent to pay $105,000 in partial indemnity costs for the application and $70,000 in partial indemnity costs for the appeal, payable within 60 days.

The appellants sought to enforce a Property Partnership Agreement granting them an option to purchase a residential property from the respondent, their mother.

The application judge declared the Agreement unenforceable on the basis that it contained an incomplete essential term regarding distribution of excess sale proceeds, and further found undue influence, breach of fiduciary duty, and unconscionability.

The Court of Appeal allowed the appeal, holding that the incomplete term was non-essential and severable, that no presumption of undue influence arose given the respondent's capacity and the specific nature of the relationship, that independent legal advice was received before the Agreement was signed, and that the unconscionability analysis failed to meet the threshold established in Uber Technologies Inc. v. Heller.

The cross-appeal was dismissed as moot.