David Paul Lee

The defendants brought a motion to set aside a default judgment and terminate garnishments, arguing improper service of the statement of claim and a plausible defence under the Limitations Act, 2002.

The court granted the motion, finding that the defendants promptly sought relief, provided a plausible excuse for default (lack of notice), and demonstrated an arguable defence.

The court emphasized the 'better practice' of serving default judgment motions and ordered the return of garnished funds (except for a small undisputed amount) as no exceptional circumstances for a freezing order were shown.

The plaintiff, Michel Drakoulakos, sued his daughter, Martha Stirpe, her husband, Mark Stirpe, and their company, 1166504 Ontario Limited, claiming beneficial ownership of a company share and its assets (taxis and investments) registered in his daughter's name, asserting a resulting trust.

He also sought alternative relief based on unjust enrichment and constructive trust.

The defendants counterclaimed for $49,000 withdrawn by the plaintiff from the daughter's credit cards.

The court dismissed the plaintiff's action, finding that the transfer of the company share and its initial asset (a taxi) was a gratuitous gift from the parents to the daughter, rebutting the presumption of resulting trust.

The court accepted the defendants' evidence that promissory notes signed by the daughter were for protection in case of divorce, not to create a debt.

The plaintiff's alternative claims were dismissed as unpleaded and unsupported by evidence.

The court allowed the daughter's counterclaim for $49,000, which the plaintiff conceded.