Frank Carlone

Plaintiff Can Duc Diep sought summary judgment against defendant Huong Thi Duong, alleging a fraudulent conveyance of equity from her ex-spouse, co-defendant Hien Cong Pham.

Diep had already obtained judgment against Pham and now sought judgment against Duong for $296,675.

Counsel for Duong raised preliminary objections, arguing the motion was an abuse of process and that a trial would be more efficient.

The court dismissed these preliminary objections, finding no abuse of process and that the motion for full summary judgment was appropriate, ordering the matter to proceed to argument.

The plaintiff, Can Duc Diep, advanced $500,000 to the defendant, Hien Cong Pham.

Diep claimed this was a loan, while Pham asserted it was an investment in a magnetic generator venture that ultimately failed.

Diep brought a cross-motion for summary judgment to recover the funds, and Pham brought a motion for summary judgment to dismiss the action against him.

The court found that the advance was a loan, supported by a written loan agreement, a "loan" notation on the cheque, and Pham's conduct, including a partial repayment and a statement about selling his house to repay the debt.

The court rejected Pham's arguments for rectification of the agreement and his claim that the advance was an investment, noting that Pham never personally owned the shares he purported to sell.

The court also determined that granting summary judgment on the loan issue was appropriate, despite a pending fraudulent conveyance claim against Pham and his wife, Huong Thi Duong, as the issues were distinct and already bifurcated.

The Corporation of the Town of Caledon brought a motion for directions regarding an appeal by Joseph Michael Bozzelli and Amanda Bozzelli under the Building Code Act, 1992.

The motion sought clarification on the proper procedural rule (Rule 61, 38, or 62 of the Rules of Civil Procedure) and whether the appeal would be a de novo hearing allowing viva voce evidence.

The court determined that Rule 62 was the appropriate procedural rule, supplemented by Rule 38 by analogy, and that the appeal would proceed as a hearing de novo.

However, the court ruled that the hearing would be on a paper record, without viva voce evidence, limiting additional evidence to affidavits concerning compliance time for the underlying property standards order.

The appellant lent money to the respondents secured by a charge on their condominium.

The respondents defaulted on payments in 1990.

Over ten years later, the appellant commenced power of sale proceedings and an action for possession and payment.

The motions judge held that all claims were barred by the Limitations Act and ordered the charge discharged.

On appeal, the Court of Appeal affirmed the decision, holding that a uniform ten-year limitation period applies to remedies under charges or mortgages, including actions for possession, actions on the covenant, and power of sale proceedings.