J.H. Fine

The plaintiff condominium corporation moved to amend its statement of claim prior to the defendants' scheduled motion for summary judgment.

The defendants opposed the motion, arguing that a prior procedural agreement reached at mediation barred the amendments, that the amendments raised new causes of action past the limitation period, and that they constituted an abuse of process and caused non-compensable prejudice.

The court rejected the defendants' arguments, finding that the mediation agreement did not waive the mandatory application of Rule 26.01, the amendments merely particularized existing claims rather than raising new causes of action, and there was no evidence of bad faith or non-compensable prejudice.

Leave to amend the statement of claim was granted.

The applicant sought declaratory relief that a writ of execution registered against him personally did not attach to lands he held in trust for a corporation.

The respondent creditor argued the trust arrangement raised triable issues and alleged the transaction was potentially a fraudulent conveyance.

The court held that the unregistered declaration of trust, created years before the writ of execution, established that the lands were held solely in trust and not beneficially by the debtor.

As an execution creditor can claim no greater interest than the debtor held, the writ could not attach to trust property or its sale proceeds.

Judgment was granted declaring the writ did not affect the lands and ordering release of funds held in trust.