Court of Appeal for Ontario

Citation: Conde v. Lebrocq, 2007 ONCA 458

Date: 2007-06-22

Docket: C44660

Between:

R. LEONEL CONDE

(Plaintiff/Appellant)

and

FRANCIS LEBROCQ, PEARL ALICE GODFREY, KATHRYN GRACE NEWMAN and PETER NEWMAN

(Defendants/Respondents)

Before: DOHERTY, MACPHERSON and CRONK JJ.A.

Counsel:

Leonard Susman for the appellant

Gesta J. Abols for the respondents, Francis Lebrocq and Pearl Alice Godfrey

Charles F. Ruttan for the respondents, Kathryn Grace and Peter Newman

Heard: June 15, 2007

On appeal from the judgment of Justice Sarah E. Pepall of the Superior Court of Justice dated November 30, 2005.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals the judgment of Pepall J. dated November 30, 2005 dismissing his action for a declaration that he was the owner of a property in Elmvale several years after he lost the property in Power of Sale proceedings.

[2] The appellant’s principal ground of appeal is that the trial judge made a palpable and overriding error in concluding that there had been an appraisal of the subject property.

[3] We disagree. There was evidence to support the trial judge’s conclusion that there was an appraisal. The trial judge accurately summarized the material evidence, which supported her decision.

[4] In any event, nothing turns on the appraisal. The property was listed for $69,500 which the appellant’s trial counsel acknowledged was a fair price. Moreover, if it had been sold at that price, there would have been no deficiency.

[5] The appellant also argued that the property was not properly marketed in that its development potential was not adequately highlighted. This argument does not appear to have been made at trial. In any event, there is no evidence that the development potential, whatever it may have been, was not reflected in the listing price and the reaction of the marketplace to the listing price.

[6] The appeal is dismissed.

[7] The respondents Lebrocq and Godfrey and the Newmans are entitled to their costs fixed at $6000 and $9000, respectively, inclusive of disbursements and GST.