Dawson Wigle

The plaintiffs obtained an ex parte temporary Mareva injunction against the defendants following the failure of their trucking joint venture.

The plaintiffs sought to continue the injunction and register a certificate of pending litigation, while the defendants moved to set it aside.

The court found that the plaintiffs failed to make full and frank disclosure on the ex parte motion, specifically omitting their own participation in transferring and dissipating corporate assets after insolvency.

As a result, the court set aside the temporary Mareva injunction nunc pro tunc and dismissed the plaintiffs' motion for interim equitable relief, finding they did not come to court with clean hands.

The appellant appealed a judgment dismissing his action against the respondents on the basis that he was an undischarged bankrupt at the relevant time and thus lacked capacity to commence it.

The appellant argued the trustee in bankruptcy had implicitly assigned him authority to commence the action by permitting him to manage the property under s. 30(1)(l) of the BIA.

The Court of Appeal held the motion judge committed no palpable and overriding error in finding that no express assignment had been made, as the trustee was unaware of both the fire damage and the action.

The court further held the appellant's claim for general damages for loss of enjoyment and use of the property was proprietary rather than personal in nature, and therefore vested in the trustee.

Appeal dismissed with no costs order given the respondents' non-participation.