J. Chahal

This is a costs endorsement following the dismissal of a motion brought by non-parties, Divya Jegasundaram and Rupasundar Jegasundaram, seeking a stay of enforcement of a Writ of Possession and to set aside a prior order.

The court ordered the Jegasundarams to pay costs to Malhotra Holdings Inc. ($12,500) and Krish Kumar Vadivale ($5,500), fixed on a basis approaching substantial indemnity.

The decision emphasized that the Jegasundarams' conduct, including bringing an urgent motion with late or missing factums and books of authorities, and shifting the requested relief, warranted elevated costs due to their non-compliance with the Rules of Civil Procedure and the unnecessary consumption of court resources.

The non-parties, who occupied the subject property, brought an urgent motion to stay the enforcement of a Writ of Possession and Notice to Vacate obtained by the plaintiff mortgagee against the defendant mortgagor.

The non-parties relied on Rule 21.01(3) of the Rules of Civil Procedure.

The Superior Court of Justice dismissed the motion, finding that the non-parties lacked standing to rely on Rule 21.01(3) as they were not defendants in the mortgage action.

The court also declined to set aside the order granting the Writ of Possession, noting the request was not properly before the court and constituted an impermissible collateral attack.

The third mortgagee brought a motion to set aside part of a Reference Report that had added the plaintiff's costs to the mortgage debt, effectively reducing the surplus funds from the power of sale to zero.

The moving party sought payment of the surplus funds and relief from previous costs orders.

The court dismissed the motion, finding that the Reference Report had been automatically confirmed 15 days after its release, and the motion to oppose confirmation was brought months out of time.

Furthermore, the court held there were no grounds under Rule 59.06 to vary the previous orders, and no error in principle or excess of jurisdiction in the referee's findings.

Following a reference to determine the amount owing under a second mortgage and the sale of the property, the court determined the costs of the proceeding.

The second mortgagee was awarded $20,000 in partial indemnity costs against the mortgagors and the third mortgagee, exhausting the remaining surplus funds.

The court also awarded substantial indemnity costs against the third mortgagee for unnecessarily causing the second mortgagee and a former counsel to prepare for a costs hearing on claims that were abandoned at the last minute.

The court declined to determine the validity of the third mortgage as no surplus funds remained.

Following the dismissal of the plaintiff's action, the court received written submissions on costs.

The successful defendants sought partial indemnity costs of approximately $64,000 each.

The self-represented plaintiff, despite being unsuccessful, also sought costs and raised numerous objections to the defendants' claims.

The court rejected the plaintiff's claim for costs but reduced the defendants' claims to account for their unsuccessful summary judgment motion, a late pleading amendment, and unrecoverable items.

The court fixed costs at $35,000 payable by the plaintiff to each of the two active defendants.

The plaintiff alleged that a religious divorce certificate and related registry entry were fraudulently altered after execution to insert a waiver of her contractual entitlement to a marriage gift contained in a marriage contract.

She sought declarations invalidating the waiver and damages exceeding $2 million.

After an eight‑day trial, the court rejected the allegation of fraud, finding on a balance of probabilities that the waiver of the marriage gift was present in the documents when signed and that the plaintiff’s subsequent conduct was inconsistent with her claim of later alteration.

The court also held that, even if fraud had been proven, the action would have been barred by applicable limitation periods under the Limitations Act, 2002.

The action was dismissed.