Leonard Ricchetti

In an appeal arising from Rule 20 and 21 motions, the appellants challenged an order dismissing their action against the executors of a deceased solicitor's estate arising from losses in a gold delivery contract investment scheme.

The court held that claims fitting within ss. 43 and 44 of the Limitations Act, including pleaded fraud, fraudulent breach of trust, recovery of trust property, accounting, and tracing relief, were not barred by the two-year limitation in s. 38(3) of the Trustee Act.

The court further held that the doctrine of plene administravit could not be determined against the appellants at this stage because it was not plain and obvious that the estate had no assets beyond $7,138, given possible insurance coverage and tracing remedies.

The appeal was allowed on the main dismissal issue, but dismissed as to two related interlocutory orders striking parts of the reply and refusing to strike an affidavit.

The appellant sought to recover deposit monies on the basis that they were impressed with a trust if the underlying transaction failed to close.

The court held that the appellant met neither branch of the Quistclose requirements because the monies were advanced and used as a deposit for their intended purpose.

The respondents also had no notice at the time the monies were provided that any trust obligation attached to them.

The appeal was dismissed with costs.