Neil A. Kaufman

The appellant sought repayment of two alleged loans said to have been made to the deceased and challenged the dismissal of one loan claim and the rejection of personal liability against the executrix.

The respondents cross-appealed the judgment granted on the larger loan.

The court deferred to the trial judge's factual findings, holding that the 20,000 DM loan was not proven while the 27,618 DM loan was adequately established against the estate.

The court also rejected personal liability theories based on plene administravit, devastavit, and s. 53 of the Trustee Act, finding no prejudice from the pleading amendment, no wrongful estate dissipation, and no basis to raise a new argument for the first time on appeal.

The appellant challenged a judgment finding no evidentiary basis to treat a third party as an agent authorized to make representations and warranties on behalf of one of the respondents.

The Court of Appeal held there was no evidence of any statement conferring authority and that the conduct relied upon did not raise a genuine issue of agency.

Agreeing with the motions judge, the court dismissed the appeal with costs.