D. Paul

The applicant private lender brought an application seeking a declaration of an equitable mortgage or damages, alleging the respondent borrower breached a mortgage contract by not accepting funds.

The respondent argued the applicant breached the contract by failing to confirm funds were available.

The court found that material facts were in dispute and credibility issues could not be resolved on the paper record.

Pursuant to Rule 38.10 of the Rules of Civil Procedure, the court ordered a trial to determine who breached the mortgage contract and converted the application into an action.

The applicant private lender brought a motion for a Certificate of Pending Litigation (CPL) against two properties owned by the respondent, claiming an equitable mortgage after a mortgage transaction failed to close.

Although the court found a triable issue regarding the equitable mortgage claim, it dismissed the motion on equitable grounds.

The court reasoned that the applicant had no intended use for the properties, the properties were not unique, and the alternative claim for damages would be an adequate and easily calculable remedy.