ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, PIERCE AND HACKLAND JJ.
B E T W E E N:
HARVEY FINKELSTEIN, BERNICE FINKELSTEIN and MLADEN PRIMORAC
Plaintiffs/Respondents
- and -
NAZMUDIN BHANWADIA, NAZLIN BHANWADIA and SAHENAZ BHANWADIA
Defendants/Appellants
Ronald Birken, for the Plaintiffs/ Respondents
Alnaz I. Jiwa, for the Defendants/ Appellants
HEARD at Toronto: December 4, 2007
CARNWATH J.: (Orally)
1The appeal will be dismissed.
2The motions judge refused to set aside the default judgment. He did so because he found on the evidence that the appellants failed to move as soon as possible and gave no reasonable explanation for the delay. His refusal to set aside was a discretion he was entitled to exercise on the evidence. He made no palpable and overriding error. We cannot disturb the exercise of his discretion. That being the case, we should not come to a contrary conclusion based on an accounting argument over a $5,000 sum. The judgment either stands or falls as entered. We cannot tinker with it.
3As to post-judgment arguments about what amounts are owing, we have no jurisdiction.
4Costs to the Respondents fixed at $4,000, inclusive of fees, disbursements and GST, partial indemnity basis, payable 30 days.
CARNWATH J.
PIERCE J.
HACKLAND J.
Date of Reasons for Judgment: December 4, 2007
Date of Release: December 6, 2007
COURT FILE NO.: 221/07
DATE: 20071204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, PIERCE AND HACKLAND JJ.
B E T W E E N:
HARVEY FINKELSTEIN, BERNICE FINKELSTEIN and MLADEN PRIMORAC
Plaintiffs/Respondents
- and -
NAZMUDIN BHANWADIA, NAZLIN BHANWADIA and SAHENAZ BHANWADIA
Defendants/Appellants
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: December 4, 2007
Date of Release: December 6, 2007