COURT OF APPEAL FOR ONTARIO
IN THE MATTER OF Tasdale Investments Limited, an Ontario
corporation with head office in the City of Toronto, Province of
Ontario
AND IN THE MATTER OF an Application pursuant to Section 248 of
the Business Corporations Act, R.S.O. 1990, c. B.16
RE: NENADIC INVESTMENTS LIMITED, UROS NENADIC and
MIRUKA INVESTMENTS LIMITED (Plaintiffs/Appellants)
–and– SAMSHER DOSSA, THE ESTATE OF RAMZANALI
DOSSA, ZABEEN REALTY LTD., AL-BARKAT INVESTMENTS
LTD., MEGHJI INVESTMENTS LTD., MEGHJI ENTERPRISES
LTD. and ZAHRA REALTY MANAGEMENT LIMITED
(Defendants/Respondents)
AND RE: SAMSHER DOSSA, THE ESTATE OF RAMZANALI DOSSA,
ZABEEN REALTY LTD., AL-BARKAT INVESTMENTS LTD.,
MEGHJI INVESTMENTS LTD., MEGHJI ENTERPRISES LTD.,
and ZAHRA REALTY MANAGEMENT LIMITED (Plaintiffs
by Counterclaim/Respondents by Counterclaim)
–and– NENADIC INVESTMENTS LIMITED, UROS NENADIC,
MIRUKA INVESTMENTS LIMITED and MARKO NENADIC
(Defendants by Counterclaim/Appellants by
Counterclaim)
BEFORE: LABROSSE, DOHERTY and AUSTIN JJ.A.
COUNSEL: J. David Sloan, for the plaintiffs/appellants
David Hager, for the defendants/respondents
HEARD: April 13, 2000
On appeal from the judgment of Spence J., dated November 4, 1997.
E N D O R S E M E N T
[1] The appellants appeal the judgment of Spence J. (the “trial
judge”) ordering the winding up of Tasdale Investments Limited
and the Joint Venture. The trial judge also ordered the Joint
Venture to pay incidental damages to certain parties and a scheme
for the payment out of all remaining assets of the Joint Venture.
In addition, the trial judge awarded the defendants their costs
on a solicitor and client basis.
[2] This case involved a bitter dispute between two equal
camps in a joint venture which operated an apartment building.
In the end, the parties failed to make arrangements for
refinancing and the building was sold under power of sale. The
parties seek damages from each other and seek to wind up the
Joint Venture.
[3] The trial judge gave extensive and considered reasons.
He made a detailed review of the facts and the positions of the
parties regarding the sale of the property. The disposition of
this action largely depended on the credibility of the main
players.
[4] The trial judge essentially rejected the evidence given by
Uros Nenadic (“Uros”) and preferred the evidence of Sam Dossa and
Jack Greenberg. This finding is well justified on the evidence
as Uros’ testimony was replete with inconsistencies, errors and
untruths.
[5] The trial judge found that Uros breached his fiduciary duty
to the Joint Venture. On the other hand, the trial judge found
that the conduct of the Dossa Group was a legitimate response to
Uros’ conduct. These findings are amply supported by the
evidence.
[6] With respect to damages, the trial judge made the critical
finding that the property had been sold under the power of sale
at a fair market value and that there was no capital loss to the
Joint Venture resulting from the sale. This finding is also well
supported by the evidence. The trial judge gave cogent reasons
for awarding incidental damages to the various parties and for
the winding up of the Joint Venture in order to bring this matter
to a conclusion. We see no error.
[7] Finally, on the issue of costs, the trial judge considered
the relevant factors, namely, the offer to settle and the conduct
of the parties. We see no error in the exercise of his
discretion.
8The appeal is dismissed with costs.
Signed: “J.M. Labrosse J.A.”
“Doherty J.A.”
“Austin J.A.”