Kenneth C. MacDonald

This decision addresses costs arising from an application to appoint an arbitrator in a dispute over a new home purchase agreement.

The applicants, purchasers, sought an arbitrator after alleging the vendor (respondent) breached the agreement and they terminated it.

The respondent initially opposed arbitration but later agreed after the applicants' termination notice.

The court had previously ruled in favor of the applicants' choice of arbitrator but reserved on costs.

This decision awards costs to the respondent for the period prior to the applicants' termination notice, finding that the arbitration clause, which related to termination disputes, was not triggered until actual termination occurred.

The court found the applicants' interpretation of the arbitration agreement did not justify enhanced costs, and awarded a net amount of $7,500 in costs to the respondent.

The Plaintiff brought a motion seeking various forms of relief, primarily to determine if Mareva injunctions ordered against him could continue post-judgment in aid of execution, or to have them set aside or varied.

The Plaintiff argued that the injunctions were causing severe financial and mental stress and that there was no longer a justifiable reason for their continuation after the trial judgment.

The Defendants opposed, asserting a continued risk of asset dissipation.

The court found that the injunctions remained in effect post-judgment and that the Defendants had met the burden of demonstrating a real risk of asset dissipation due to the Plaintiff's past conduct and non-compliance with disclosure orders.

The court dismissed the Plaintiff's motion to set aside or vary the injunctions, including requests for funds for living expenses and legal fees, finding insufficient evidence of lack of other assets.

The court also clarified that Mareva injunctions can persist despite an appeal and automatic stays of execution, as they serve a protective function.

The Plaintiff, Reza Hassim Zadeh Tabrizi, sued Majesty Development Group Inc. for breach of an Agreement of Purchase and Sale (APS) for a property, seeking the return of his $150,000 deposit.

He alleged Majesty breached the APS by refusing to consent to a severance application, which he claimed was a fundamental term.

Majesty counterclaimed for damages due to the Plaintiff's failure to close, including loss of bargain, carrying costs, and financing costs for another property.

The Plaintiff also brought a third-party claim against his real estate agents for negligence, alleging they failed to include the severance condition in the APS.

The court found that the Plaintiff breached the APS by refusing to close, primarily due to a decline in the real estate market, and that severance was not a term of the original agreement.

Majesty's refusal to cooperate with severance was not a breach.

The court awarded Majesty damages for the difference in sale price and carrying costs, but denied claims for financing costs of another property and property improvements, finding them too remote or unnecessary.

The Plaintiff's action against Majesty and the third-party action against the real estate agents were dismissed.