DATE: 20020917 DOCKET: C37743

COURT OF APPEAL FOR ONTARIO

RE: MACK CANADA INC. (Applicant (Respondent in appeal)) – and – ESSENTIAL CONCRETE LTD. and VESDAR CAPITAL CORPORATION (Respondents (Appellant in appeal)

BEFORE: McMURTRY C.J.O., GOUDGE AND MacPHERSON JJ.A.

COUNSEL: Victor Peters, for the appellant

David E. Fine, for the respondent Mack Canada

HEARD: September 6, 2002

On appeal from the judgment of Justice Sandra Chapnik dated January 11, 2002.

E N D O R S E M E N T

Released Orally: September 6, 2002

[1] The application judge found that no unconditional contract between Mack and Essential arose in June 2001 such as would create a security interest requiring registration when Essential came into possession of the two trucks.

[2] Without commenting on the remainder of her reasons for reaching this conclusion, we are of the opinion that her finding that any agreement made at that time between Mack and Essential was truly conditional on the obtaining of financing was one sufficient to sustain her conclusion. In our view, this finding depending as it does on the intention of the parties is one of fact and was open to her on this record. To overturn this finding on appeal we would have to find that she made a palpable and overriding error in reaching this conclusion. This we cannot do.

[3] Despite Mr. Peters’ able argument, the appeal must be dismissed. Costs are fixed in the amount of $2,500.

“R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”