DATE: 20040405

DOCKET: C38677

COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF THE BANKRUPTCY OF CARNESE HARDWARE LIMITED, o/a CREDITVIEW PRO HARDWARE OF THE CITY OF MISSISSAUGA, IN THE REGIONAL MUNICIPALITY OF PEEL, IN THE PROVINCE OF ONTARIO

BEFORE: CATZMAN, GOUDGE and SHARPE JJ.A.

COUNSEL:

Antonio Conte for the appellant Frank Cartaginese

David J. Kirwin for the respondent KPMG Inc.

HEARD AND ENDORSED: April 5, 2004

On appeal from the judgment of Justice Janet M. Wilson of the Superior Court of Justice dated June 26, 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 raised three points in connection with this appeal: (i) insolvency as of November 5, 1999; (2) replacement of an earlier general security agreement with the G.S.A. executed on that date; and (3) the two vehicles that were transferred out of the bankrupt company to the appellant and his wife.

[2] All of these matters were canvassed by the trial judge, who made findings against the appellant that were supported by the evidence. In our view, she committed no palpable and overriding error in making these findings, which are fatal to the position advanced on behalf of the appellant on this appeal.

[3] The appeal is dismissed with costs fixed in the sum of $5,000 plus disbursements and G.S.T.