Mark Samuel Dunn

The mortgagees of one property subject to a court-appointed manager sought to vary a without-notice management order so that the manager’s charges would rank behind their mortgage and no fees would be allocated to that property.

The court held the motion was not brought forthwith as required by Rule 37.14(1), given the mortgagees had notice of the order for months before serving and scheduling their variation motion.

The court further held the mortgagees had acquiesced in the manager’s continued administration of the property while knowing the manager was incurring fees in reliance on court-ordered priority.

Applying the receiver-priority principles in Kowal, the court found the manager’s charges were properly granted and refused to disturb the priority scheme.

The applicants and respondents entered into joint venture agreements to invest in commercial real estate projects through jointly owned companies.

The applicants discovered that the respondents were commingling funds, failing to make their required equity contributions, and diverting the applicants' funds to their own personal benefit and to companies they solely owned.

The court found that the respondents breached their contractual and fiduciary duties and were unjustly enriched.

The court imposed constructive trusts over several properties owned by the respondents, appointed a receiver over the respondents' assets, and cancelled the respondents' shares in the jointly owned companies where they had not contributed equity.

The appellants appealed a ruling on an application to interpret a settlement agreement that ended a joint venture for property development.

The agreement stipulated that the existing sales office for Stage I could not be used to sell Stage III lands.

The appellants alleged the respondents breached this by moving the sales office to Stage III lands and selling from it, despite changing its appearance.

The Court of Appeal upheld the application judge's finding that the clause was ambiguous and that the respondents' interpretation accorded with the agreement's purpose and good business sense.

The appeal was dismissed.

The appellant appealed an order finding his proposed counterclaim for fraud, breach of fiduciary duty, and misrepresentation was statute-barred.

The Court of Appeal dismissed the appeal, finding the appellant was aware of the restrictions on his share redemption rights more than two years before issuing the counterclaim.

The Court also rejected the appellant's new argument that a six-year limitation period under the Securities Act applied.

The applicant filed a human rights application alleging discrimination more than two years after the last alleged incident, and more than one year after a previous application was dismissed for being filed under the wrong section of the Code.

The applicant argued the delay was in good faith due to mental health issues and time spent in Thailand.

The Tribunal found the delay was not incurred in good faith, noting the applicant's ability to travel and file electronically, and dismissed the application for being outside the one-year limitation period.

The appellants appealed an order of the motions judge which concluded that there was no real and substantial connection to support jurisdiction and that jurisdiction should be declined on the ground of forum non conveniens.

The Court of Appeal dismissed the appeal, agreeing with the motions judge's cogent and persuasive reasons and finding no grounds to interfere with the result.