Sarah J. Clarke

Appeal concerning whether a mortgagee that had been denied inclusion of a $4 million collateral mortgage in a prior judicial accounting could later assert entitlement to payment from the same power-of-sale proceeds.

The majority held that res judicata had been adequately pleaded and raised at first instance and that cause of action estoppel barred the appellant from advancing a new theory in support of the same entitlement claim.

The Court held that the prior and subsequent proceedings concerned the same cause of action, namely the validity, value, and priority of encumbrances in the judicial accounting, and that all reasonably available arguments should have been advanced in the earlier proceeding.

The appeal was dismissed with party-and-party costs.

Three judges dissented, disagreeing on whether res judicata had been raised in time and whether estoppel should apply.

The plaintiffs brought an unsuccessful summary judgment motion against the defendants regarding vicarious liability for the fraudulent acts of their employee.

The defendants sought their costs of the motion on a substantial indemnity basis, while the plaintiffs argued costs should be reserved to the trial judge.

The court ordered that the costs of the summary judgment motion be reserved to the trial judge, as the issues remained live and the work done would reduce trial costs.

The court also found the plaintiffs were entitled to substantial indemnity costs for their default judgment motion against the employee, but requested a revised costs outline.