DATE: 20050207

DOCKET: C42266

COURT OF APPEAL FOR ONTARIO

RE:

STATE BANK OF INDIA (CANADA) (Plaintiff/Respondent) – and – PATRICK FRASER KENYON PIERREPONT LETT, CYNTHIA JANE LETT also known as JANE LETT, GOODMAN AND CARR LLP, IN TRUST, STANELY J. WAX and NEIL F. RABINOVITCH (Defendants/Appellant)

BEFORE:

FELDMAN, SIMMONS AND GILLESE JJ.A.

COUNSEL:

Derrick M. Fulton

for the appellant

Ronald Birken

for the respondent

HEARD:

February 2, 2005

On appeal from the judgment of Justice Ellen M. MacDonald of the Superior Court of Justice dated June 25, 2004.

E N D O R S E M E N T

[1] The appellant challenges the validity of the Bank charge renewal agreement made October 31, 2000. However, the appellant does not challenge the validity of the prior renewal agreement made September 28, 1999 and maturing October 19, 2000, a renewal that both she and her husband executed. Nor does the appellant question the validity of the underlying Bank charge. Thus, even if the appellant were successful in having the renewal dated October 31, 2000 set aside, the respondent is entitled to partial Summary Judgment for possession by reason of the failure to discharge the Bank charge when it matured on October 19, 2000.

[2] Accordingly, we would dismiss the appeal with costs to the respondent in accordance with the provisions of the Bank charge agreement.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“E. E. Gillese J.A.”