CITATION: Mammone Estate v. Mammone, 2017 ONSC 4613
COURT FILE NO.: CV-14-511191
DATE: 20170728
ONTARIO
SUPERIOR COURT OF JUSTICE
APPLICATION under the Partition Act, R.S.O. 1990, c. P.4
BETWEEN:
LAURA MAMMONE, ANTONIO MAMMONE and DANIELE MAMMONE, ESTATE TRUSTEES of the ESTATE OF FRANK MAMMONE
Applicants
– and –
EMILIO MAMMONE and DENSITY GARDEN ENTERPRISES INC.
Respondents
Alastair McNish for the Applicants
David Pomer for the Respondents
HEARD: July 28, 2017
PERELL, J.
REASONS FOR DECISION
[1] The Applicants are the Estate of Frank Mammone and the late Mr. Mammone’s adult children, Laura, Antonio, and Daniele. The Respondents are Emilio Mammone (the late Frank Mammone’s brother and the uncle of Laura, Antonio and Daniele) and Density Garden Enterprises Inc., a corporation owned 50-50 by Emilio and Frank’s Estate.
[2] The Application concerns two properties: (1) 7912 Kipling Avenue in Vaughan, Ontario; and (2) 7918 Kipling Avenue, Vaughan, Ontario.
[3] In a decision that was upheld by the Court of Appeal, Justice Dow made an Order under the Partition Act, R.S.O. 1990, c. P.4. for the sale of two properties. See Mammone Estate v. Mammone, 2016 ONSC 2681, aff’d 2017 ONCA 18.
[4] In a decision reported as Mammone Estate v. Mammone, 2017 ONSC 3403, I amended Justice Dow’s Order.
[5] On May April 4, 2016, Justice Dow granted the Estate’s application and dismissed Emilio’s cross-application. Justice Dow made the following Order:
ORDER
THIS APPLICATION made by the Applicants for an order directing the properties municipally known as 7912 Kipling Avenue and 7918 Kipling Avenue, Vaughan, Ontario (the “Properties”) be sold, for an order directing an accounting of the income and expenses of the Properties, and for an order directing that the Respondent Density Garden Enterprises Inc. be wound up, and this CROSS-APPLICATION made by the Respondents for an order for specific performance directing that the Applicants’ one-half direct and indirect interests in the Properties be sold to the Respondent, Emilio Mammone, ….
THIS COURT ORDERS THAT the following lands and premises be listed for sale, marketed and sold: ….
THIS COURT ORDERS THAT the sale of the Properties shall be conducted in accordance with the following:
(a) The Parties shall retain a real estate agent selected by the Applicants, to assist with the listing for sale, marketing and sale of the Properties, and who shall act on the instructions of the Applicants;
(b) The Parties shall retain Frank Sgro, real estate solicitor, to assist with the completion of the legal work necessary to facilitate and effect the sale of the Properties; and
(c) The Parties will accept offers to purchase either of the Properties if such offers are recommended for acceptance by the real estate agent identified in subparagraph (a) above, and will otherwise take all reasonable steps to co-operate with the real estate agent to effect the sale of the Properties.
- THIS COURT ORDERS THAT the net proceeds of the sales of the Properties shall be paid as follows:
(a) in respect of 7912 Kipling,
(i) 50% thereof to the Estate of Frank Mammone, and
(ii) 50% thereof to the Respondent Emilio Mammone,
subject to the accounting hereafter referred to;
(b) in respect of 7918 Kipling,
(i) 50% thereof to the Estate of Frank Mammone, as a shareholder of 50% of the shares of the Respondent, Density Garden Enterprises Inc. and,
(ii) 50% thereof to the Respondent Emilio Mammone, as a shareholder of 50% of the shares of the Respondent, Density Garden Enterprises Inc.
subject to the accounting hereafter referred to.
THIS COURT ORDERS THAT upon the sale of 7918 Kipling and the accounting referenced in paragraph 6 below, the Respondent Density Garden Enterprises Inc. shall be wound up pursuant to section 207 of the Business Corporations Act, ….
THIS COURT ORDERS that the Cross-Application of the Respondents is dismissed.
THIS COURT ORDERS that the Respondents shall provide an accounting to the Applicants with respect to all rental and other revenues generated by the Properties, and all taxes and expenses paid …. The accounting agreed to by the Parties shall include an assessment of the services performed by Emilio Mammone for the purpose of calculating its value. …
[6] In the Order that I made, I deleted paragraph 2 from Justice Dow’s Order and substituted the following:
- THIS COURT ORDERS THAT the sale of the Properties shall be conducted in accordance with the following:
(a) The Applicants shall retain and sign a standard listing agreement with a term of 45 days with Alfredo DiGenova, to assist with the listing for sale, marketing and sale of the Properties, and who shall act on the instructions of the Applicants;
(b) The Parties shall retain Frank Sgro, real estate solicitor, to assist with the completion of the legal work necessary to facilitate and effect the sale of the Properties;
(c) The acceptance of any offer is subject to court approval and if the Applicants receive an offer within the listing period, they may bring a motion for court approval of the sale;
(d) The Respondent Emilio Mammone may submit offers but shall not have a right of first refusal;
(e) If no offer is received within the period of the listing, the Applicants may apply for an order extending the time for the listing of the properties or for any other order that is just;
(f) If the court approves the acceptance of the offer, and the Respondents refuse to sign the transfer to the purchaser, the court shall make a Vesting Order pursuant to s. 100 of the Courts of Justice Act;
(g) The real estate commission, conveyancing lawyer’s fees shall be paid out of the proceeds of sale; and
(h) If Emilio has not paid the costs awards of the Partition Act proceedings made against him, those costs shall be deducted from his share of the proceeds of sale.
[7] The parties now return to Court and the Applicants seek approval of two accepted offers to sell the two properties.
[8] For the present purposes of determining whether or not to approve the offers, I need not recount the trials and tribulations that led to the Applicants’ procuring the offers, save to say that there is evidence that the Respondents were not co-operative and were perhaps obstructionists. I will, however, take this conduct into account in fashioning the terms of the approval Order.
[9] Beginning with 7912 Kipling Avenue, there is no reason not to approve the sale to Vangro Holdings Limited, a third-party, arm’s length purchaser. Vangro offered to pay the purchase price $550,000.
[10] I approve the sale to Vangro Holdings in accordance with the offer dated July 17, 2017 that was filed as Exhibit “K” to the affidavit of Laura Mammone.
[11] Turning to 7918 Kipling Avenue, there is, however, a reason not to approve the sale to Franca Colosimo, a third-party, arm’s length purchaser, for $780,000 in accordance with the offer dated July 5, 2017, as amended, that was filed as Exhibit “G” to the Affidavit of Laura Mammone.
[12] The reason is that there is a rival purchaser, Danlauton Holdings Ltd., albeit not an arm’s length rival, that made an offer to purchase the 7918 Kipling Avenue property for $825,000; i.e., $45,000 more than Mr. Colosimo is prepared to pay.
[13] Danlauton is a corporation owned by the Estate of Frank Mammone and Sandra Mammone and is, therefore, not an arm’s length purchaser, and while Danlauton would prefer not to purchase the 7918 Kipling Avenue property unless it also could purchase the 7912 Kipling Property for $424,000, during argument, it indicated that it was prepared to purchase the 7918 Kipling Property without also tying that purchase to the purchase of the other property.
[14] There is thus no reason not to approve the sales of both properties at the maximum prices that the sales process has achieved.
[15] I, therefore, approve the sale of the 7918 Kipling Avenue property for $825,000 to Danlauton in accordance with the offer, which was filed as Exhibit “S” to the Affidavit of Laura Mammone.
[16] Alternatively, I approve the sale to Mr. Colosimo, if he is prepared to match the purchase price of $825,000. Mr. Colosimo shall have 5 days to agree in writing to match the purchase price.
[17] Accordingly, I approve the sale of both properties as aforesaid.
[18] I further Order that the purchase moneys paid on closing less real estate commission and conveyancing costs be paid into court to the credit of this application.
[19] I further Order that if the Respondents do not sign the transfer or otherwise fail to co-operate to close the sale transactions that the Applicants may apply without notice for a vesting order pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990, c. 43.
Perell, J.
Released: July 28, 2017
CITATION: Mammone Estate v. Mammone, 2017 ONSC 4613
COURT FILE NO.: CV-14-511191
DATE: 20170728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LAURA MAMMONE, ANTONIO MAMMONE and DANIELE MAMMONE, ESTATE TRUSTEES of the ESTATE OF FRANK MAMMONE
Applicants
– and –
EMILIO MAMMONE and DENSITY GARDEN ENTERPRISES INC.
Respondents
REASONS FOR DECISION
PERELL J.
Released: July 28, 2017