Court File and Parties

CITATION: Padelt v. Show Fong Lu, 2010 ONCA 69

DATE: 20100127

DOCKET: C49603

COURT OF APPEAL FOR ONTARIO

Moldaver, MacPherson and LaForme JJ.A.

BETWEEN:

John Joseph Padelt

Plaintiff (Respondent)

and

638506 Ontario Inc. and Roberta Lu and Show Fong Lu

Defendants (Appellant, Show Fung Lu)

Gregory D. Wrigglesworth, for the appellant Show Fung Lu

Lianne Armstrong, for the respondent

Heard and endorsed: January 26, 2010

On appeal from the judgment of Justice Edward Ducharme of the Superior Court of Justice dated March 3, 2008.

APPEAL BOOK ENDORSEMENT

[1] This appeal is essentially fact driven. In his able argument, Mr. Wrigglesworth submits that the trial judge erred in concluding that the respondent mortgagee was not negligent in managing the property or, conversely, that he let the property fall into disrepair, thereby decreasing its value.

[2] We disagree. The trial judge gave careful and cogent reasons for concluding that the respondent mortgagee complied with his obligations to reasonably maintain the property pending its sale. As he observed at para. 89 of his reasons, viewed fairly, and having particular regard to Mr. McLandress’s statement, which he accepted, maintenance of the property “was not a major issue. When an isolated problem arose – a window broken, a complaint about the length of the grass, the presence of an abandoned vehicle – Mr. McLandress dealt with it. In so doing, he discharged the mortgagee’s duty to preserve and maintain the property as a reasonable, prudent owner would”.

[3] In our view, that finding was open to the trial judge and we see no basis for interfering with it.

[4] As for costs, the trial judge considered all of the relevant factors and we see no error in his analysis or conclusion.

[5] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $7,700 inclusive of G.S.T. and disbursements.