DATE: 20051004

DOCKET: C43285

COURT OF APPEAL FOR ONTARIO

RE:

DEMAN CONSTRUCTION CORP. (Respondent (Respondent in the Appeal) – and – 1429036 ONTARIO INC., AAA MOVE MASTER LTD., RICK BENIPERSAUD, ROMSPEN INVESTMENT CORPORATION, AS TRUSTEE AND 1531685 ONTARIO INC. (Applicants (Appellants))

BEFORE:

SIMMONS, LANG AND ROULEAU JJ.A.

COUNSEL:

Leo Klug

for the appellants

Anna Esposito

for the respondent

HEARD & RELEASED ORALLY:

September 27, 2005

On appeal from the order of the Divisional Court (Justice John G. J. O’Driscoll, Justice Ted Matlow, Justice John R. Jennings) dated November 1, 2004.

E N D O R S E M E N T

[1] The appellants concede that at the very least there was an oral contract for construction costs of $750,000. As quantified by the appellants, the extent of their counterclaim is at most $413,590.66, leaving a balance of $336,409.34.

[2] We see no evidence to support a defence with respect to the appellants’ liability for $336,409.34. There was however evidence in the record capable of supporting a defence to the remainder of the respondent’s claims. While much of that evidence may be weak, it was not for the motions judge or the Divisional Court to assess its ultimate reliability and credibility in determining whether the noting of default and default judgment should be set aside. In this regard, we note as well that the appellants launched their set aside motion within days of the respondent’s noting default and signing judgment. Although there were subsequent delays, the appellants’ prompt initial response carries some weight.

[3] With respect to the issue of Mr. Benipersaud’s personal liability, he acknowledges that he signed the stipulated price contract but asserts that signing that contract was the result of misrepresentations by the respondent. However, on its face, that contract is between Mr. Benipersaud, the numbered company and the respondent and there was a separate signing line for AAA Move Master Ltd. Mr. Benipersaud clearly signed the stipulated price contract in more than one capacity and inserted no limitations or restrictions as to his personal liability. While the alleged misrepresentations may raise a question concerning the scope of the intended contract, we see no issue concerning Mr. Benipersaud’s intention to be personally bound.

[4] The only other defence raised by the appellants to the first $750,000 of the respondent’s claim was, as we have said, by way of set-off for the amount of the appellants’ counterclaim. While we find it unnecessary to admit the fresh evidence for the purpose of deciding the appeal, we accept the figure set out in the notice of motion for fresh evidence as the appellants’ re-quantification of their counterclaim.

[5] In light of our conclusions and all of the circumstances of this case, we would vary the principal amount of the judgment signed by the registrar from $2,536,789.00 to $336,409.34 and add a provision stipulating that the respondent’s claim for the additional amounts may proceed. The order varying the amount of the judgment is made/ on the following terms:

(1) the writs of seizure and sale and the registered liens shall remain in place for their full amount pending the trial, settlement or other resolution of this action, subject to the proviso that pending trial, settlement or other resolution of this action the respondent may not execute for an amount in excess of $336,309.34 plus interest and costs;

(2) the appellant shall deliver their statement of defence and counterclaim on or before September 30, 2005; and

(3) the appellants shall deliver their affidavit of documents within the time limit stipulated by the Rules of Civil Procedure.

[6] Costs of the appeal and of all proceedings below are awarded to the respondent on the basis of costs thrown away in a global amount of $12,500 inclusive of G.S.T. and disbursements.

“Janet Simmons J.A.”

“S. E. Lang J.A.”

“Paul S. Rouleau J.A.”