Melinda Rose Margaret Vine

Gray Jay Estates Inc. sought a court order to vary the “Payment Amount” under an assignment of indebtedness and security agreement, which would have increased the amount payable by NE SPC II LP (Blacksail) by approximately $1 million.

The dispute centered on whether cash on hand should have been used to repay a DIP facility before closing, and whether a term should be implied into the agreement to require such repayment.

The court found no basis to imply such a term, holding that the contract’s language was clear and that the parties had not agreed to the adjustment sought.

The motion was dismissed, and costs were awarded to Blacksail.

The Receiver, msi Spergel Inc., sought court approval for its First Report, an increase in its Borrowings Charge, approval of a sales and marketing process (SISP) for the property, and approval of its fees and counsel's fees.

The Receiver also sought an anticipatory release from liability for proposed environmental remediation work, save for gross negligence or wilful misconduct.

The court approved all requests except for the anticipatory release and discharge of the Receiver from environmental liability, citing a reluctance to grant declaratory relief for actions not yet undertaken and in the absence of a full evidentiary record.

The appellant, Timothy Rodger, appealed an order dismissing his action for delay under Rule 24.01 of the Rules of Civil Procedure.

The action, a negligence claim against London Hydro Inc., had seen no steps taken for over four years after examinations for discovery.

The motion judge dismissed the action, citing the passage of over five years since commencement, the lack of an affidavit explaining the delay, and the presumption of prejudice.

The Court of Appeal upheld the motion judge's decision, finding no error in the exercise of discretion to dismiss the action and deny a further adjournment.

The appeal was dismissed with costs awarded to the respondent.

The appellant, Ayerswood Development Corporation, appealed a Superior Court order directing that funds paid to Sirius Concrete Inc. shortly before its bankruptcy formed part of the bankrupt estate.

Ayerswood argued the funds were subject to a constructive trust due to Sirius's deceit and unjust enrichment.

The Court of Appeal found the bankruptcy judge erred in summarily dismissing the constructive trust claim, holding that Ayerswood's uncontradicted evidence, if true, could legally support such a trust.

The appeal was allowed, and the matter remitted for a proper determination of entitlement to the funds.

The appellant appealed a summary judgment granting the respondent payment on a mortgage covenant and possession of the mortgaged property, and dismissing her counterclaim.

The respondent, who previously acted as the appellant's lawyer, had made a series of loans to the appellant.

The Court of Appeal dismissed the appeal, finding that the respondent proved the mortgage and default, while the appellant's response consisted of bald allegations unsupported by evidence.

The court also found no impropriety in the motion judge issuing a supplementary endorsement to address the counterclaim after receiving correspondence from the respondent's counsel.

A commercial landlord sued a prospective tenant for damages arising from the tenant’s refusal to proceed with a lease after an offer to lease had been executed and a draft lease negotiated.

During design work, the parties discovered that a structural bearing wall prevented installation of the large windows contemplated by the offer, and that installing them would cost more than ten times the estimated amount.

The court held that the subsequent draft lease was unenforceable under the Statute of Frauds because it was never signed and no written memorandum satisfied the statute.

The court further found that the original offer to lease was frustrated by an unforeseeable structural condition that fundamentally altered the nature of the bargain, as the building could not reasonably provide the natural light and design features essential to the tenant’s intended use without radically increased cost.

Both the action and the tenant’s counterclaim were dismissed.