Granville Cadogan

The moving parties sought a panel review to set aside a motion judge's order requiring them to pay security for costs within 30 days, failing which their appeal would be dismissed.

The Court of Appeal found no legal error or misapprehension of material evidence in the motion judge's discretionary decision, agreeing that the appeal lacked merit and the justice of the case supported the order.

The motion to set aside the order, and an alternative request for an extension of time to post security, were dismissed.

The respondents and third parties brought a motion for security for costs against the appellants pending an appeal of a summary judgment order in a mortgage enforcement action.

The motion judge found that the appeal had a low prospect of success and that the appellants were unlikely to pay a costs award, satisfying the 'other good reason' requirement under Rule 61.06(1)(c).

The court ordered the appellants to post security for costs, though the amount for the plaintiff was reduced as a party should not have to give security simply to defend an order obtained below.

The defendants moved to set aside a default judgment and to dismiss the action on the basis that the individual plaintiff was an undischarged bankrupt and lacked capacity to sue or direct the corporate plaintiff.

The plaintiffs brought a cross-motion to remove the defendants' counsel, arguing he was in a conflict of interest and a potential witness.

The court dismissed the motion to remove counsel, finding no substantial risk to the administration of justice.

The court granted the motion to set aside the default judgment, noting the plaintiff failed to disclose her bankruptcy when obtaining it.

Finally, the court dismissed the action as a nullity and an abuse of process, as an undischarged bankrupt cannot commence an action or act as a corporate director under the Business Corporations Act.

The defendants moved to strike the plaintiff's 60-paragraph statement of claim, which alleged a broad conspiracy of mortgage fraud involving numerous parties and properties.

The court struck the claim in its entirety under Rule 25.11, finding it unduly prolix, confusing, and likely to prejudice a fair trial.

However, the court granted the plaintiff leave to re-plead specific, legally viable claims related to her own property, while denying leave to re-plead claims that constituted a collateral attack on a prior judgment or sought relief on behalf of third parties.

In a divorce proceeding, both parties brought motions to enforce a settlement agreement, but advanced divergent interpretations of its terms.

The court noted that neither party addressed the appropriate legal test for determining if a binding agreement was reached, nor the correct procedural mechanism under the Family Law Rules (Rule 16 or Rule 18(13)).

The court adjourned the motions and directed counsel to provide further submissions on these procedural and substantive issues before making a final decision.

The defendant successfully brought a motion to quash the plaintiff's appeal of an interlocutory order and successfully resisted the plaintiff's motion to extend the time to appeal.

The court awarded the defendant full indemnity costs of $5,997.49 for the motion to quash, finding the plaintiff's pursuit of the appeal in the wrong forum was entirely unnecessary despite repeated warnings.

The court also awarded the defendant partial indemnity costs of $1,500.00 for the motion to extend time, noting efficiencies between the two interrelated motions.

A dispute between former cohabiting partners over beneficial ownership of a home registered solely in the respondent’s name.

The applicant relied on a written agreement confirming that the respondent held legal title as trustee for both parties with each owning a 50% beneficial interest.

The respondent argued the applicant contributed little to the purchase and had breached the agreement by failing to pay expenses.

The court accepted the authenticity and effect of the written agreement and found the applicant had made substantial financial contributions including mortgage payments and vehicle payments that offset other expenses.

The court declared the applicant held a 50% beneficial interest and set out terms for buyout or sale of the property, with adjustments for unpaid contributions after January 2014.

The responding party was previously found in contempt for failing to provide financial disclosure.

She failed to purge her contempt, did not attend subsequent hearings citing medical issues, and failed to pay outstanding costs orders.

The moving party moved to strike her pleadings.

The court found a consistent pattern of non-compliance and struck the responding party's pleadings, granting the moving party leave to proceed with an undefended trial.

Costs of $15,000 on a full recovery basis were awarded to the moving party.