K. William McKenzie

The Plaintiff sought substantial indemnity costs against the Defendants Zhou and Aguazion Inc. following two successful motions: a Mareva injunction and a variation of that order due to Zhou's fraud and misrepresentation.

The court awarded partial indemnity costs for the first motion, payable in the cause, and substantial indemnity costs for the second motion, fixed at $52,415.07, payable forthwith or from the Alternative Payment of Security Option (APSO) fund.

The judge found Zhou's conduct, including perjury and misleading evidence, warranted serious costs consequences, justifying substantial indemnity for the second motion.

The appellant appealed a motion judge's decision dismissing its motion to strike out and declare void Personal Property Security Act registrations filed by the respondent.

The appellant argued that without a signed security agreement, the PPSA registrations were invalid.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the motion judge's order was interlocutory, not final.

The court held that the order did not finally dispose of the real matter in dispute between the parties, which concerned the equipment's deficiencies and the parties' respective obligations, rather than the validity of the security interest itself.

The appeal was quashed with costs, and the appellant was directed to pursue an appeal to the Divisional Court.

Following a successful summary judgment motion on liability under a promissory note, the court determined costs of the motion.

The moving parties sought full indemnity costs based on alleged misconduct by the opposing party.

The court found that both counsel had engaged in problematic conduct during the motion and that any misconduct was mutual.

Applying the principle that costs generally follow the event absent exceptional circumstances, the court awarded partial indemnity costs to the successful moving parties.

Costs were fixed at $6,000 inclusive of HST and disbursements.

The plaintiffs moved for summary judgment to enforce a promissory note executed in connection with an asset purchase agreement for a recycling business.

The defendant admitted signing the note and acknowledged the outstanding balance but argued that the plaintiffs had waived default, improperly seized collateral, and failed to account for the sale of secured assets.

The court held that no clear waiver or agreement to forbear from enforcing the note was established and that the defendant failed to produce evidence supporting allegations of improper seizure under the Personal Property Security Act.

However, due to ongoing litigation regarding the seizure and disposition of secured assets, the precise amount owing under the note remained uncertain.

Summary judgment on liability was granted, the defence was struck, and the quantum of the debt was ordered to be determined at trial together with the related injunction proceedings.