DATE: 20021007
DOCKET: C35950

COURT OF APPEAL FOR ONTARIO

RE: 392278 ONTARIO LIMITED, carrying on business as GROUP THREE (Plaintiff/Respondent) – and – INTEROPEKA, S.A., MONETARY FUNDS, S.A., The Litigation Administrator of the Estate of ALEKSANDAR MILETICH and DORIS DORA MILETICH (Defendants/Applicants)

BEFORE: CARTHY, LABROSSE AND GOUDGE JJ.A.

COUNSEL:
William G. Dingwall, Q.C. For the appellant
Chris E. Reed and Lilli Boctor Bullen For the respondent

HEARD: October 2, 2002

On appeal from the judgment of Justice James M. Spence dated February 7, 2001.

ENDORSEMENT

Released Orally October 2, 2002

[1] The trial judge found that Mr. Miletich misappropriated some $547,000 of trust monies belonging to the respondents. Indeed the appellant does not contest this. The trial judge went on to find as a fact that the monies used to purchase the house in question came from these trust monies. In our view, this finding was open to him on the evidence.

[2] Moreover, we are of the view that having traced the trust monies into the house and having found that the house was fully purchased by those funds, the trial judge was correct in declaring that the house was held in trust for the respondents.

[3] As to the arguments raised in this court by the appellant concerning laches, limitation periods and adverse possession, we agree with the reasoning and conclusions of the trial judge. Moreover, we find no error in the way he disposed of the other issues before him at trial.

[4] The appeal must be dismissed.

[5] Costs fixed on a partial indemnity basis at $10,000 inclusive of G.S.T.

"J.J. Carthy J.A."

"J. Labrosse J.A."

"S.T. Goudge J.A."