Matthew Barteaux

The plaintiffs sought an interlocutory injunction to prevent the defendants from enforcing two vendor take-back mortgages on a commercial property and the plaintiffs' residential property.

The plaintiffs alleged they were induced to purchase the property based on inaccurate sales figures and that the transaction was fraudulent.

The court dismissed the motion, finding that the plaintiffs failed to establish irreparable harm that could not be quantified monetarily and that the balance of convenience favoured the defendants.

The decision reinforced the principle that mortgagees should be allowed to enforce contractual rights unless fraud related to the mortgage itself is proven, and noted the plaintiffs' apparent inability to honour their undertaking as to damages.

The Defendant brought a motion seeking a further examination for discovery and production of documents from Plaintiff Mark Birikorang.

Although the substantive issues were settled by consent, the parties disagreed on costs.

The court found the motion necessary due to the Plaintiff's initial refusal to attend a third examination.

The Defendant was awarded costs, but the claimed amount was reduced from $7,572.70 to $4,000 for fees, plus $560.50 for disbursements, totaling $4,560.50, payable by the Plaintiff Mark Birikorang.