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Appeal from order striking claim for knowing receipt of trust funds dismissed as funds were not impressed with a trust.
The appellant appealed an order striking his claim for damages against his wife's lawyers in matrimonial proceedings.
The appellant alleged that his wife's share of the proceeds from the sale of the matrimonial home constituted trust funds, and that her lawyers were liable for knowing receipt of trust funds when they were paid from those proceeds.
The Court of Appeal dismissed the appeal, agreeing with the motion judge that the property in question was not impressed with a trust.
Appeal costs fixed at $15,000 on a partial indemnity basis; application costs remitted to application judge.
Following the release of reasons for judgment on the appeal, the Court of Appeal received written submissions on costs.
The Court declined to fix costs for the underlying application, directing the parties to make submissions to the application judge.
For the appeal, the Court rejected the respondents' claim for substantial indemnity costs, determining that partial indemnity was appropriate, and fixed the respondents' costs at $15,000 inclusive of disbursements and GST.
Registered easements can be preserved by reference in an instrument registered within the 40-year title search period.
The appellant property owner sought a declaration that the respondents' registered rights of way over its land had expired under Part III of the Registry Act.
The appellant argued that the 1981 amendments required a notice of claim in the prescribed form to preserve an easement after 40 years.
The application judge dismissed the application, finding that a claim could also be preserved if referenced in an instrument registered within the title search period.
The Court of Appeal dismissed the appeal, holding that the statutory definition of 'notice period' and the complementary nature of the title search and expiry periods supported the preservation of claims through reference in registered instruments.
