DATE: 20040419

DOCKET: C37583

COURT OF APPEAL FOR ONTARIO

ABELLA and CRONK JJ.A. and JURIANSZ J. (ad hoc)

In the Matter of the Bankruptcy of Robert Platt of the Township of Mono in the County of Dufferin and Province of Ontario.

B E T W E E N:

ROBERT PLATT

Robert M. Isles and R. Donald Rollo

for the appellant

Appellant

• and -

KAARINA MALMSTROM, 798839 ONTARIO LTD., MURRAYFIELD CORP., JONATHAN MARLER and SCOTT & PICHELLI LTD.

W. Alex Kyle for the respondent Kaarina Malmstrom

David Bleiwas for the respondent 798839 Ontario Ltd.

Chris Morrison for the respondent Jonathan Marler

Respondents

Heard: January 21, 2004

On appeal from the related orders of Justice James M. Farley of the Superior Court of Justice dated July 2, 2001, November 28, 2001 and December 27, 2001 in Toronto.

ABELLA J.A.:

[1] This is an appeal from a series of orders, including a receiving order, made in bankruptcy proceedings against Robert Platt. The basis for the appeal is that there is fresh evidence to support the theory, propounded by Mr. Platt throughout, that the proceedings were initiated to extinguish his contested interest in a valuable mining claim.

[2] This appeal was heard together with the appeal in Boudreau v. Marler. Both decisions are being released concurrently.

BACKGROUND

[3] The background of this litigation is inordinately complex but indispensable to an understanding of the issues in the appeal.

The China Wars Litigation

[4] In the late 1980s, Mr. Platt owned mining claims for kaolin, an industrial mineral (the Kaolin Claims). He and Jacobus Hanemaayer were partners in a controlling interest in Great Lakes Nickel Ltd., a public company incorporated to own and develop the Kaolin Claims.

[5] Mr. Hanemaayer and his lawyer, Eric Kraushaar, incorporated 798839 Ontario Ltd. (39 Ltd.), which obtained an option from Mr. Platt to purchase the Kaolin Claims subject to a right of reversion.

[6] In the spring of 1989, a kaolin deposit was confirmed. However, on December 8, 1989, 39 Ltd. informed Mr. Platt that it was terminating work on the Kaolin Claims. This event, according to Mr. Platt, triggered his reversionary right.

[7] In March 1990, Mr. Hanemaayer and 39 Ltd. sued Mr. Platt, his business partner, Andre Boudreau, James Bay Kaolin Corp. (JBK), and others for $14 million on the basis that funds advanced to Mr. Platt and JBK had not been spent on exploration and development of the Kaolin Claims as they should have been (the 1990 Hanemaayer Action).

[8] In June 1993, Mr. Platt and others sued Mr. Hanemaayer, Mr. Kraushaar, 39 Ltd., Great Lakes Nickel Ltd., and others to obtain the return of the Kaolin Claims (the 1993 Platt Action).

[9] Since 1994, Farley J. has case managed both the 1990 Hanemaayer Action and the 1993 Platt Action, litigation he refers to as the "China Wars". This litigation is ongoing.

The Platt Mortgage Proceedings

[10] Mr. Platt also had an interest in Gregor Goldfields Corp. (Gregor), a public mining corporation. In 1992, Mr. Boudreau and John Wiebe became involved in Gregor. In anticipation of an advance of funds from them, Mr. Platt gave Murrayfield Corp. (Murrayfield), the company controlled by Mr. Wiebe, a collateral mortgage on his Cochrane, Ontario home for $80,000. In January 1993, Mr. Platt transferred, in trust, his share position in Gregor to Murrayfield for "pooling purposes". In 1996 and 1997, Mr. Wiebe sold Mr. Platt's shares in Gregor for cash proceeds of at least $91,895.

[11] In 1993, Murrayfield assigned the mortgage on Mr. Platt's home to Betty Jane Wheeler as security for a personal loan that she advanced to Mr. Wiebe in the amount of $45,000. Mr. Wiebe did not inform Mr. Platt of the assignment.

[12] In October 1998, Murrayfield's then solicitor, Wayne Gray, issued power of sale proceedings with respect to Mr. Platt's home, alleging default under the mortgage. On December 15, 1998, Ms. Wheeler transferred the mortgage back to Murrayfield.

[13] In separate proceedings commenced by him against Murrayfield and Ms. Wheeler, Mr. Platt successfully moved before Boissonneault J. in Cochrane on March 10, 1999 to have the mortgage discharged from title on the basis that no funds were owing under it. No one appeared for Murrayfield on the motion.

[14] Mr. Wiebe then commenced foreclosure proceedings in Toronto, retaining Jonathan Marler as counsel for Murrayfield. Mr. Wiebe assigned the mortgage to Mr. Marler on March 26, 1999, again without informing Mr. Platt. Mr. Marler registered the assignment of the mortgage on title almost one and a half years later, on November 6, 2000.

[15] On April 1, 1999, one week after Murrayfield had assigned the mortgage to him, Mr. Marler moved before Boissonneault J. on behalf of both Murrayfield's predecessor company and Ms. Wheeler to have the mortgage reinstated on title. Boissonneault J. set aside his previous order and directed that a trial take place in the proceedings commenced by Mr. Platt, once cross-examinations on the parties' affidavits had been completed.

The Boudreau Mortgage Action

[16] In November 2000, in an attempt to collect on 1996 and 1997 judgments against Murrayfield, Mr. Boudreau instructed the sheriff to seize Murrayfield's interest in the mortgaged property and have it sold under writ of seizure and sale. Mr. Boudreau learned that the assignment of the mortgage to Mr. Marler had been registered on title the day before the attempted seizure.

[17] Mr. Boudreau then commenced an action on March 5, 2001 against Mr. Wiebe, Murrayfield, and Mr. Marler, alleging that the assignment of the Cochrane mortgage from Murrayfield to Mr. Marler was made "with the intent to defeat, hinder, delay, or defraud the plaintiff from collecting the funds owing to him under the [judgments] previously obtained by him."

[18] On March 18, 2002, Mr. Boudreau was successful in his mortgage action before Nadeau J., who found that the assignment of the mortgage from Murrayfield to Mr. Marler was a fraudulent conveyance under the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 and an unlawful preference under the Assignments and Preferences Act, R.S.O. 1990, c. A.33. The assignment was therefore declared void and set aside. An appeal by Mr. Marler from that judgment was heard by this court at the same time as this appeal. In a separate decision released together with these reasons, that appeal was dismissed.

The Platt Bankruptcy Litigation

[19] On June 9, 1999, Murrayfield, 39 Ltd. (for an unpaid costs award), and Ersen Cogulu issued a petition in bankruptcy against Mr. Platt, which put on hold the trial ordered by Boissonneault J. in the Platt mortgage proceedings.

[20] When Mr. Platt sought security for costs against Mr. Cogulu, Mr. Cogulu withdrew from the bankruptcy litigation. He was replaced as a petitioning creditor by Kaarina Malmstrom, a former employee of 39 Ltd.

[21] By letter to Mr. Platt dated June 18, 1999, Mr. Marler offered to settle the Platt mortgage proceedings for $8,000. Mr. Marler wrote that other creditors were filing in the bankruptcy litigation and that "[i]f Mr. Platt wishes to get out of the boondogle he has created by the filing of this application, I suggest that he settles his differences with Mr. Wiebe immediately." Mr. Platt argued that this letter represented a threat to put him in bankruptcy unless he settled the Platt mortgage proceedings on Mr. Marler's terms.

[22] On June 21, 1999, Mr. Platt delivered a notice disputing the bankruptcy petition. He claimed that the petition had been brought by 39 Ltd. and its principals for a collateral purpose, namely, to eliminate him as a litigant in the China Wars litigation over the Kaolin Claims.

[23] On December 17, 1999, Mr. Platt's counsel informed the bankruptcy court that Murrayfield's claim regarding the mortgage was disputed and would require several days of hearing. As a result, Murrayfield withdrew as a petitioning creditor and the bankruptcy proceedings were adjourned. This left 39 Ltd. and Ms. Malmstrom as petitioning creditors.

[24] Prior to the Platt bankruptcy litigation, Mr. Platt, JBK, and others were ordered to pay legal costs of $9,895.44 to 39 Ltd. and Mr. Hanemaayer, and $2,196.56 to Mr. Kraushaar in connection with the China Wars litigation. On February 4, 2000, immediately before the bankruptcy hearing, JBK's solicitor paid these costs by certified cheque. As well, a cheque for $1,525.88 was delivered to Ms. Malmstrom, representing an amount owed under an outstanding judgment against Mr. Platt, with a letter explaining that Mr. Platt did not accept personal responsibility for the debt but wished to have the judgment satisfied. About one month earlier, Mr. Platt had informed the court through his counsel that he wished to pay Ms. Malmstron's debt. Mr. Marler had advised the court that Ms. Malmstrom would not accept payment from Mr. Platt.

[25] Ms. Malmstrom, 39 Ltd., Mr. Hanemaayer, and Mr. Kraushaar refused to accept the payments. Instead, the cheques were turned over to a trustee nominated by Mr. Marler. Mr. Platt argued that the decision to turn over the cheques to a trustee was a deliberate – and successful – attempt to have Mr. Kraushaar and Mr. Hanemaayer (through 39 Ltd.) participate in the Platt bankruptcy litigation, thereby allowing them to control the resolution of the China Wars litigation.

[26] Farley J., the bankruptcy judge, ruled that it was not material that the costs were paid, since the debts were owed as of the date of the petition. He granted a receiving order against Mr. Platt on February 7, 2000 on the basis that the petitioning creditors were owed in excess of $1,000. He found that the judgments and orders entered against Mr. Platt more than six months before the issuance of the petition were sufficient evidence of an act of bankruptcy within six months of the filing date of the petition, without a formal demand.

[27] The bankruptcy judge also found that Mr. Platt generally had failed to meet his obligations as they fell due:

Quite clearly, there is evidence of multiple debts owing by Mr. Platt which he has not paid over extensive periods of time. Firstly there is the numbered company debt. As discussed, that should have been paid at the latest by October 15, 1998, some sixteen months ago. Then there is Ms. Malmstrom's judgment which should have been paid ten years ago….

Then there is the debt owing to Eric Kraushaar of $2,196.56, which falls in the same category as the numbered company debt with respect to the cost orders….

Mr. Platt has also acknowledged owing the Municipality of Timmins some $7,000 of tax arrears on the residence and that debt extends back for several years.

Then there is the debt that he owed Dr. Ersen Cogulu….

Then we have the acknowledgment by Mr. Platt that he ignored a 1979 judgment which Barbara Hughes had obtained.

[28] The bankruptcy judge was not told about the assignment of the Cochrane mortgage on Mr. Platt's home from Murrayfield to Mr. Marler.

[29] Mr. Platt's appeal of the receiving order was heard by the Court of Appeal on March 12, 2001. Although one of the grounds of appeal was that the petition was filed for an improper purpose, this ground was not pursued at the hearing of the appeal. On March 23, 2001, the court dismissed Mr. Platt's appeal.

[30] On April 30, 2001, Mr. Platt brought a motion seeking an order annulling the receiving order pursuant to s. 187(9) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA), on the grounds that Mr. Marler had acted improperly. On July 2, 2001, the motion was adjourned and the bankruptcy judge ordered a viva voce hearing limited to two issues: meetings between Mr. Hanemaayer and Mr. Boudreau concerning the alleged involvement of Mr. Hanemaayer in the Platt bankruptcy litigation; and the legal accounts rendered by Mr. Marler to Murrayfield and Ms. Malmstrom, as well as the payment of and responsibility for those accounts.

[31] The bankruptcy judge, after hearing evidence from Mr. Hanemaayer, Mr. Boudreau, Mr. Marler, Mr. Wiebe, and Ms. Malmstrom, dismissed the annulment motion on November 28, 2001. In his endorsement, he stated:

The Hanemaayer interests were separately represented at the petition. Hanemaayer was wary of everybody; he wanted his lawyer (Duncan) involved. Marler appears to have stumbled across 839 [39 Ltd.] indirectly through his property searches. That, once the petitioners joined forces, it is not surprising that they would co-operate with each other – including advising as to other creditors – e.g. Malmstrom. Joining forces is not the same thing as acting jointly and it certainly does not mean that motives are the same or that there is a conspiracy (to bankrupt Platt so as to eliminate a litigation adversary). Even if it were shown that 839 had an improper motive, there is still the petition of Malmstrom which would not be affected.

Improper purpose was raised as a suspicion before me – that Hanemaayer was orchestrating the petition to eliminate Platt as a litigant adversary in the China Wars. No evidence relevant to that was adduced. Improper purpose was raised in the Notice of Appeal and in the factum for the Court of Appeal according to counsel before me. I was however advised that the issue was not raised at the Court of Appeal. Counsel for Platt in the annulment hearing (Mr. Rollo) confirmed that he could not point out any new evidence which had been "discovered" in between the hearing of the appeal on March 12, 2001 and the notice of motion for annulment [on] April 30, 2001.

In the end result I do not find that Platt has met the onus involved in introducing fresh evidence. Indeed the material which he has adduced even now is not material or persuasive on the issue of Platt being declared bankrupt.

[32] On December 27, 2001, the bankruptcy judge awarded costs on a substantial indemnity basis to Mr. Marler against Mr. Platt, to survive the bankruptcy, and concluded that Mr. Boudreau, as a non-party, should not be liable for costs.

[33] Mr. Platt again appealed the bankruptcy judge's order. This is that appeal. Mr. Platt is appealing from the related orders of the bankruptcy judge, dated July 2, 2001, November 28, 2001, and December 27, 2001. He also seeks to set aside the receiving order made by Farley J. on February 7, 2000 pursuant to s. 181(1) of the BIA.

[34] At the date originally scheduled for the hearing of this appeal, Mr. Platt brought a motion before this panel to adduce fresh evidence. The motion was successful, and the hearing was adjourned to provide the respondents with an opportunity to prepare responding material for a new hearing before the same panel.

ANALYSIS

[35] Mr. Platt argued that there is now sufficient evidence, adduced by way of fresh evidence, to justify either setting aside the receiving order or ordering a new hearing. The fresh evidence, he submits, supports his argument that the Platt bankruptcy litigation was initiated by Mr. Hanemaayer, 39 Ltd., and Mr. Kraushaar for an improper purpose: to obtain the Kaolin Claims by eliminating Mr. Platt as an adversary in the China Wars litigation; to shield them from a tax reassessment of their claim for $18 million in flow-through tax benefits; and to obtain a grant of more than $3 million from Natural Resources Canada.

[36] Mr. Platt relies on a reporting letter, dated February 9, 2000, from Irwin Duncan, former counsel for 39 Ltd., to Earl Orth, a management consultant to 39 Ltd. who swore the bankruptcy petition for 39 Ltd. The letter was written two days after the receiving order was made. In it, Mr. Duncan confirmed that the bankruptcy could be used to resolve the outstanding litigation:

In the final result Platt was adjudged bankrupt and the firm of Scott, Pichelli & Graci Limited was appointed as trustee in Bankruptcy. You should receive Notice of the First Meeting of Creditors and a Statement of Affairs shortly. As we discussed with you we recommend that you involve yourself directly in the bankruptcy proceedings to ensure that Platt complies with the requirements of the Bankruptcy and Insolvency Act. Mr. Platt's bankruptcy will also give you an opportunity to hopefully finally deal with the outstanding litigation that has been going on for many years. This matter will have to be carefully managed to ensure that Platt's counterclaim is dismissed and that the relief sought by 798839 Ontario Limited and Jacobus Hanemaayer in the Statement of Claim is realized [emphasis added].

[37] Mr. Platt also relies on fresh evidence to support his argument that Murrayfield initiated the bankruptcy proceedings for an improper purpose. Mr. Platt relies on an affidavit of verification sworn by Mr. Wiebe on behalf of Murrayfield in which it is claimed, incorrectly, that Mr. Platt owed Murrayfield a debt on the mortgage. Mr. Platt's assertion that this claim was false is confirmed by the minutes of a meeting of the inspectors, dated July 4, 2002, a document that was not before the bankruptcy judge. In the minutes, the trustee states that the Cochrane mortgage was "duly paid off by Mr. Platt" and that, accordingly, the inspector authorized the trustee to proceed to set aside the mortgage to Murrayfield.

[38] The fresh evidence also clearly implicates Mr. Marler.

[39] Mr. Wiebe swore Murrayfield's false affidavit at Mr. Marler's law office. Neither Murrayfield nor Mr. Wiebe responded to the 1999 motion before Boissoneault J. to discharge the mortgage and, thereby, admitted that there was no amount due under the mortgage. Nor did Mr. Marler reveal to the bankruptcy judge that the mortgage on Mr. Platt's home had been assigned to him.

[40] Moreover, there are significant discrepancies between Mr. Marler's testimony and the fresh documentary evidence. Nadeau J.'s reasons in the Boudreau mortgage action against Mr. Marler, Mr. Wiebe, and Murrayfield, released on March 18, 2002, indicate that the assignment of the mortgage from Murrayfield to Mr. Marler was a fraudulent conveyance and an unlawful preference. Nadeau J. also held that Mr. Marler wilfully misled the court and lacked credibility. Moreover, he held that Mr. Marler double and triple billed his clients Murrayfield and Ms. Malmstrom.

[41] In addition, Mr. Marler testified that he had never met or spoken with Mr. Hanemaayer until the summer of 2001, and that Mr. Hanemaayer's company, 39 Ltd., had been separately represented throughout the Platt bankruptcy proceedings by its own counsel. To confirm this testimony, at the bankruptcy hearing on November 26, 2001, Mr. Marler filed a fax that he had sent to Ms. Malmstrom on January 27, 2001, nearly a year after the receiving order was issued, in which he stated:

I sincerely hope that Mr. Hanemaayer does not make a deal with either Mr. Platt or Mr. Boudreau. However, I have no control over Mr. Hanemaayer. Indeed, I have never met or even spoken to him. I have not acted for 798839 Ontario Ltd. in this or any matter. However, I am doing work for Great Lakes Nickel Ltd., which is indirectly controlled by Mr. Hanemaayer [emphasis added].

[42] Mr. Marler's assertion that he had no relationship with Mr. Hanemaayer or 39 Ltd. is contradicted by two letters and an affidavit in the fresh evidence. The first letter is from Mr. Marler to Mr. Duncan, former counsel to 39 Ltd., dated October 31, 2000, about one year before Mr. Marler's 2001 testimony and three months before his fax to Ms. Malmstrom, and not previously available. This letter states in part: "I am somewhat embarrassed by my appointment to represent the interests of 798839 Ontario Ltd. in the Platt bankruptcy." There is also a responding letter from Mr. Duncan to Mr. Marler, dated November 1, 2000, acknowledging Mr. Marler's appointment and asking for the delivery of a notice of change of solicitors.

[43] The fresh evidence also includes confirmation of Mr. Marler's relationship with Mr. Hanemaayer's company, in the form of an affidavit from Mr. Orth sworn August 3, 2002, in which Mr. Orth states: "[I]n the meantime, Platt appealed the issuance of the receiving order and 39 Limited retained Jonathan Marler…for the purpose of orchestrating a unified response to Platt's appeal."

[44] The fresh evidence also demonstrates that Mr. Marler represented Mr. Cogulu, one of the original petitioning creditors. Mr. Marler had denied this before the bankruptcy judge, yet in his January 21, 2002 testimony before Nadeau J. in the Boudreau mortgage action, Mr. Marler said:

Initially there were three petitioning creditors, Mr. Wiebe, excuse me, Murrayfield Corp. claiming the money due under its mortgage, a Doctor Ersen Cogulu who was one of the judgment creditors to whom I referred earlier in my evidence who had registered a judgment against Mr. Platt and a third petitioning creditor who I did not represent, 798839 Ontario Ltd. So at the outset of the bankruptcy proceeding, I represented Murrayfield Corp. and Doctor Ersen Cogulu [emphasis added].

[45] Also relevant is the matter of the costs that were paid by certified cheque by JBK's solicitor on February 4, 2000, prior to the bankruptcy hearing. In combination with the other fresh evidence, the refusal to accept payment at Mr. Marler's direction is suspect. The refusal allowed Mr. Hanemaayer and Mr. Kraushaar to participate actively in Mr. Platt's bankruptcy.

[46] The bankruptcy judge concluded that the costs payment by JBK's lawyer did not disqualify the respondents as creditors because these costs were debts owed as of the date of the petition. The bankruptcy judge, however, did not have the benefit of several relevant letters not previously available. The first letter is dated February 29, 2000, three weeks after the receiving order was made. It is from another of 39 Ltd.'s lawyers, Burton Tait, to Mr. Duncan, to which was attached a certified cheque for $9,895.44 payable to 39 Ltd. and Mr. Hanemaayer. In this letter, Mr. Tait wrote that it had not yet been demonstrated that the money had originated with Mr. Platt.

[47] The second letter, dated November 1, 2000, is from Mr. Duncan to Mr. Marler. In it, Mr. Duncan expressed his concern that the funds did not belong to Mr. Platt and should not, therefore, be forwarded to the trustee to form part of Mr. Platt's bankrupt estate.

[48] On April 11, 2001, Mr. Marler wrote to Mr. Tait requesting that he send a letter to Mr. Duncan giving him authority to release the cheques to 39 Ltd. and Mr. Hanemaayer, since Mr. Duncan was still refusing to do so. On April 17, 2001, Mr. Duncan's firm sent the cheque to Mr. Hanemaayer on his own behalf and on behalf of 39 Ltd. On Mr. Marler's advice, the cheque was endorsed in favour of the trustee on April 19, 2001 by Mr. Orth on behalf of 39 Ltd. and Mr. Hanemaayer.

[49] Thereafter, in a letter dated May 1, 2001, Mr. Kraushaar's counsel, Nancy Spies, told Mr. Marler that pursuant to his earlier request, she was enclosing a cheque for $2,196.56 for him to give to the trustee.

[50] The trustee, who, as previously indicated, had been nominated by Mr. Marler, was informed by Mr. Platt that the costs awards had been paid by a third party. Had payment of these costs been accepted, 39 Ltd., Mr. Hanemaayer, and Mr. Kraushaar would not have been able to participate in the administration of Mr. Platt's estate.

[51] The July 4, 2002 minutes of the inspectors' meeting show that the trustee attempted to enlist free legal services from counsel to 39 Ltd., Mr. Hanemaayer, and Mr. Kraushaar in order to conclude the sale of Mr. Platt's interests in the China Wars litigation. The minutes indicate that counsel for Mr. Kraushaar and Mr. Hanemaayer agreed to cross-examine Mr. Platt and Mr. Boudreau in the bankruptcy proceedings, at no cost, on the issue of the ownership of the shares of JBK.

[52] The impropriety of Mr. Marler's role in orchestrating the bankruptcy proceedings is reinforced by his astonishing conduct in relation to his cost assessments, as mentioned earlier. Nadeau J. stated in his reasons in Mr. Boudreau's action that "the evidence of double and triple billing by Mr. Marler and his obtaining the Consent of Wiebe and Murrayfield to the Assessment of Bills of Costs demonstrate his complicity."

[53] On the consent of Mr. Wiebe and Murrayfield, Mr. Marler had Murrayfield's costs in the bankruptcy proceedings assessed and allowed in the amount of $70,270 by an assessment officer of the Superior Court of Justice in Milton on January 23, 2001. Ms. Malmstrom's accounts were assessed and allowed by the Registrar in Bankruptcy on July 12, 2000 in the amount of $51,700. The total of both sets of costs was $121,970. At the time, Mr. Platt owed Ms. Malmstrom $1,500. Murrayfield was owed nothing and was $500,000 in debt.

[54] There is also Ms. Malmstrom's bill of costs for the appeal of the receiving order, approved by the Registrar in Bankruptcy in the total amount of $31,027.

[55] The bankruptcy proceedings were brought by petitioning creditors who had a total claim of only $11,500 and who, by the time the hearing started, had been offered certified cheques to cover their claims. Instead of accepting payment, aided by Mr. Marler, they engineered their participation in Mr. Platt's bankruptcy. The fresh evidence clearly discloses that the bankruptcy proceedings were in fact used as a tactic by 39 Ltd. and its owners to eliminate an adversary from the China Wars litigation. Moreover, the fresh evidence supports Mr. Platt's claim that there was no money owing on the Cochrane mortgage, which meant that Mr. Platt's home was mortgage free and worth more than $100,000. This amount was more than sufficient to discharge his debts.

CONCLUSION

[56] The fresh evidence indicates that Mr. Platt was solvent at the time that the bankruptcy proceedings were initiated, that there were no amounts owing on the Cochrane mortgage on his home, and that the bankruptcy was initiated for an improper purpose by 39 Ltd., Mr. Kraushaar, and Mr. Hanemaayer and orchestrated by Mr. Marler.

[57] Given the compelling evidence of impropriety and improper purpose revealed by the fresh evidence, I would set aside all the bankruptcy orders as requested, including the receiving order. Mr. Platt is entitled to his costs on a partial indemnity basis, fixed in the total amount of $40,000.

RELEASED:

"APR 19 2004" "R.S. Abella J.A."

"RSA" "I agree E.A. Cronk J.A."

"I agree Russell Juriansz J. (ad hoc)"