Court of Appeal for Ontario

Date: 2003-11-06

Docket: C40091

Re: Andreas Tzembelicos (Applicant/Appellant) and Evangelos Tzembelicos, Nikitas Tzembelicos, Christos Tzembelicos and Donview Management Ltd. (Respondents/Respondents in Appeal)

APPLICATION PURSUANT TO Sections 207 and 248 of the Business Corporations Act, R.S.O. 1990, c.C.43, Section 3 of the Partition Act, R.S.O. 1990, c.P.4 and Section 35 of the Partnerships Act, R.S.O. 1990, c.P.5.

AND RE: Evangelos Tzembelicos, Nikitas Tzembelicos, Christos Tzembelicos (Applicants/Respondents) and Andreas Tzembelicos and Donview Management Ltd. (Respondents/Appellant)

Before: Morden, Gillese and Armstrong JJ.A.

Counsel: Thomas S. Kent for Andreas Tzembelicos Peter H. Griffin, and Matthew P. Sammon for the Evangelos, Nikitas and Christos Tzembelicos

Heard: October 23, 2003

Released Orally: October 23, 2003

On appeal from the judgment of Justice Ground of the Superior Court of Justice dated April 28, 2003.

Endorsement

[1] We are far from persuaded that the applications judge erred in the exercise of his discretion in dismissing the application and in granting relief on the counter application.

[2] The record fully supports his finding of a partnership. The partners, as beneficiaries of the trust of the lands, would have an interest in the land sufficient to enable them to bring an application under the Partition Act. That interest, however, is not a possessory one and, therefore, does not give a corresponding prima facie right to partition or sale.

[3] For these reasons the applications judge, in the exercise of his discretion, was entitled to take into account all of the competing interests and grant relief on the counter petition, the benefits of which he enumerated.

[4] With respect to costs, it appears to us that, given the history of acrimony that existed among the four brothers, it was highly unlikely that this matter could have been settled on any basis. It was, therefore, necessary that the matter be resolved by the court. In these circumstances, we think that to award substantial indemnity costs against one of the four brothers is an unduly harsh result.

[5] Accordingly, the appeal on the merits is dismissed. Leave to appeal the costs disposition is granted and the costs award is varied to $10,000 including disbursements and G.S.T. The respondents are entitled to the costs of the appeal, which, in light of the divided success on the appeal, we fix at $5,000.

"J.W. Morden J.A."

"E.E. Gillese J.A."

"R.P. Armstrong J.A."