COURT OF APPEAL FOR ONTARIO

DATE: 20031103

DOCKET: C37690

RE:

ABDUL QAYYUM MIAN (Respondent/Plaintiff) – and – MIKE KALEZIC & 1009954 ONTARIO INC. and MARTA KALEZIC and KAHLON FAMILY HOLDINGS LTD. (Appellant/ Defendants)

BEFORE:

O’CONNOR A.C.J.O., MOLDAVER and GILLESE JJ.A.

COUNSEL:

Patrick Di Monte

for the Kahlon Family Holdings Ltd.

Donald Brown

for the respondent

HEARD:

October 31, 2003

On appeal from the judgment of Justice Harriet Sachs of the Superior Court of Justice dated March 5, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant seeks to advance a secret trust argument for the first time on appeal. Apart from the propriety of attempting that at this stage of the proceedings, in light of the appellant’s concession that the examination for discovery transcript was not before the trial judge, the record does not support that argument.

[2] There is no reason to interfere with the trial judge’s determination that the motel transfer was a fraudulent conveyance.

[3] The result of that determination is that the motel becomes an asset of the numbered company and is subject to Mr. Mian’s claim against it. Mr. Kahlon may have overpaid for the shares of the numbered company but that does not, in itself, disentitle Mr. Mian to his claim.

[4] Accordingly, the appeal is dismissed.

[5] Costs to the respondent are fixed on a partial indemnity basis in the amount of $4,570 inclusive of disbursement and G.S.T.

“D.R. O’Connor A.C.J.O.”