Stephen Barbier

The applicants, shareholders in Golden Ocean Investment Corporation, brought a motion challenging the validity of second and third mortgages registered against a property owned by the corporation.

They alleged the sole director executed the mortgages without authority as part of a fraud, and that the mortgagees were willfully blind to badges of fraud.

The court dismissed the motion, finding the mortgagees were bona fide purchasers for value who conducted proper legal due diligence.

The court held that taking a financial or underwriting risk does not constitute willful blindness to fraud, and the mortgagees were entitled to rely on the director's actual and ostensible authority.

The applicants sought continuation of a Mareva injunction, a timetable for the underlying proceeding, and a contempt declaration arising from an asset disclosure order in a complex debt collection dispute tied to real estate development projects and alleged personal guarantees.

The respondents cross-moved to vacate earlier without-notice and interim injunctive orders.

The court held that the applicants failed to make the full and fair disclosure required on a without-notice injunction motion and, in any event, failed to establish the substantive requirements for Mareva relief, including a strong prima facie case against the individual respondents and a sufficient evidentiary basis for prejudgment execution.

The contempt motion was dismissed because non-compliance and wilfulness were not proven beyond a reasonable doubt.

The earlier orders were vacated, the proceeding was converted into an action, and costs were made costs in the cause.

Three related applications were brought concerning shareholder disputes in three closely held corporations operating as insurance brokerages and an investment holding company.

The applicants sought declarations of oppression and various remedial orders, including share buyouts and winding up.

The court dismissed all claims of oppression, finding no conduct that violated reasonable expectations.

However, the court found that the shareholders of two of the operating companies were hopelessly deadlocked and unable to work together.

Consequently, the court ordered the winding up of those two companies under the just and equitable ground of the Business Corporations Act, while dismissing the request to wind up the investment holding company.

The defendant Terex Corporation brought a motion for summary judgment to be let out of the action.

The plaintiff ultimately did not oppose the summary judgment but disputed the defendant's claim for costs.

The court found the plaintiff liable for costs because it kept the defendant in the litigation despite being unable to establish liability.

The court rejected the plaintiff's argument that the defendant should not recover costs due to joint representation with other defendants.

Costs were awarded to the defendant on a partial indemnity basis, fixed at $20,000.

The plaintiff construction manager brought an action against the defendant developer for unpaid invoices totaling over $1 million.

The defendant counterclaimed for delay damages, costs to rectify deficiencies, and return of construction management fees, alleging the plaintiff failed to perform its contractual obligations.

The court found that the parties had varied the written contract by their conduct and that the plaintiff was not responsible for any of the project delays, which were caused by the defendant's failure to provide a completed design and obtain permits on time.

The court also held that the plaintiff was not liable for construction deficiencies, as those were the responsibility of the trades.

The plaintiff was awarded $644,871.69 for unpaid invoices, with deductions made for overcharges and unproven payments.

The applicant obtained ex-parte Mareva and Norwich orders against his brother and sister-in-law, alleging they mismanaged a jointly owned corporation and breached an oral trust agreement.

The respondents moved to set aside the orders, arguing material non-disclosure and failure to meet the evidentiary threshold.

The court agreed, finding the applicant failed to disclose relevant correspondence and that contradictory evidence precluded a strong prima facie case.

However, given evidence of potential misappropriation, the court ordered a forensic accounting and froze the respondents' real property pending the investigation.

The plaintiff mining company retained the defendant engineering consultants to provide a feasibility study for a proposed mineral resource development.

After nearly four years and over $3 million in expenditures, the defendants reported the resource was insufficient to proceed.

The plaintiff sued for professional negligence, breach of contract, and negligent misrepresentation, arguing the defendants should have made this determination much sooner.

The court found the defendants breached their duty of care and made negligent misrepresentations by failing to properly manage the project, verify the resource model, and communicate concerns.

The court awarded the plaintiff $1,250,000 in damages for 'unnecessary waste' and dismissed the defendants' counterclaim for unpaid fees.