Paul Feldman

The moving defendant sought to set aside a noting in default in a contract action for unpaid real estate commission arising from a commercial leasing arrangement.

Applying r. 19.03(1) of the Rules of Civil Procedure and the Franchetti/Kisel factors, the court held that the delay was adequately explained by prior counsel's health-related incapacity and reporting failures, that the moving party acted promptly once the default judgment motion came to its attention, and that the claim was straightforward.

The court found no material prejudice to the plaintiffs if the matter proceeded on the merits and held that the moving party had at least an arguable defence based on lack of contractual privity.

The noting in default was set aside and the moving party was granted 30 days to serve and file its statement of defence.

The plaintiff brought a motion for summary judgment for unpaid invoices relating to custom millwork installed in two homes renovated by the defendants.

The court found summary judgment appropriate for part of the claim, awarding the plaintiff damages for work actually delivered, less a set-off for conceded deficiencies.

The court dismissed the remainder of the claim for undelivered work due to the plaintiff's failure to provide evidence of its actual damages or costs incurred.

The issue of whether a trust was created under the Construction Lien Act from the sale proceeds of the homes was directed to a mini-trial due to insufficient evidence on the record.

Following a six‑day reference hearing concerning mortgage accounting and alleged defaults, the court had determined that the mortgages were in default and that the plaintiff owed a substantial sum on two outstanding mortgages, subject to minor overpayments.

The defendants sought costs of the reference.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the relative success of the parties and their conduct during the proceeding.

Although the defendants were largely successful, the court reduced the amount sought to reflect their partial lack of success and some contribution to the length of the hearing.

Costs were fixed on a partial indemnity basis.