REASONS FOR JUDGMENT
COURT FILE NO.: CV-17-577569 DATE: 2019-05-23 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: MAGDY HAMDY Applicant – and – LEON WICKHAM Respondent
COUNSEL: Christopher Somerville, for the Applicant Self-Represented, for the Respondent
HEARD: March 22, 2019
JUSTICE: Peter Bawden
[1] Mr. Wickham represented Mr. Hamdy in matrimonial proceedings. On May 22, 2015, Justice Wildman ordered Mr. Hamdy’s former wife, Nermeen Hamdy, to make an equalization payment of $307,569.66 to Mr. Hamdy.
[2] On November 8th, 2015, Mr. Wickham obtained a direction from Mr. Hamdy requiring Ms. Hamdy’s counsel, Judith Nicoll, to pay the entire amount of the equalization payment to him personally.
[3] Mr. Hamdy subsequently retained new counsel and commenced assessment proceedings against Mr. Wickham. On November 24th, 2015, Mr. Hamdy executed a revised direction which required Ms. Nicoll to hold the court ordered payment in trust.
[4] Faced with these two inconsistent directions from Mr. Hamdy, Ms. Nicoll and Ms. Hamdy applied to the court under Rule 43.02 of the Rules of Civil Procedure for an interpleader order requesting that they be permitted to pay the equalization payment into court pending the outcome of the assessment proceedings between Mr. Wickham and Mr. Hamdy.
[5] On February 5, 2016, Justice Matheson granted the requested interpleader order. In her order, Justice Matheson invited Mr. Wickham to commence proceedings to establish any proprietary interest which he claimed in the equalization payment. Mr. Wickham has never initiated such proceedings.
[6] On October 31, 2016, Mr. Hamdy and Mr. Wickham appeared before an assessment officer for a preliminary appointment. Mr. Wickham raised a number of issues concerning the terms of the assessment which led the assessment officer to order Mr. Hamdy to bring an application before a Judge to obtain directions regarding the terms of the assessment.
[7] In a ruling reported at 2018 ONSC 7693, I defined the terms of the assessment and ordered that the assessment proceed on October 29, 2018. The order was peremptory to both parties.
[8] Mr. Wickham filed a Notice of Appeal of that order on November 7, 2018. His appeal was dismissed on January 21, 2019 due to the failure to perfect the appeal.
[9] Mr. Wickham arrived late for the assessment hearing on October 29, 2018. Upon arriving, he sought an adjournment to retrieve materials which he had evidently failed to serve on Mr. Hamdy or file with the assessment office. It soon became apparent that Mr. Wickham had failed to abide by this Court’s order concerning the materials which were to be filed for the assessment. Mr. Wickham’s request for an adjournment was denied and the assessment was ordered to begin at 1:00 PM.
[10] Mr. Wickham was not present at 1:00 PM. The hearing commenced at 1:15 PM and Mr. Wickham’s accounts were assessed at nil.
[11] Mr. Wickham arrived at 1:30 PM and protested the fact that the hearing had commenced in his absence. Very fortunately for Mr. Wickham, Mr. Hamdy consented to a reassessment in the amount of $129,096. Mr. Wickham was not required to pay anything to Mr. Hamdy other than his costs for the assessment hearing.
[12] In the three years since Justice Matheson made the interpleader order, Mr. Wickham has never applied for a charging order to establish a proprietary interest in the funds paid into court. The assessment proceeding is now complete and Mr. Hamdy does not owe anything to Mr. Wickham. The only possible justification for leaving the interpleader order in place has now been removed. The funds and accumulated interest belong to Mr. Hamdy and I order that they be released to him.
Justice Peter Bawden Released: May 23, 2019
COURT FILE NO.: CV-17-577569 DATE: 2019-05-23 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: MAGDY HAMDY Applicant – and – LEON WICKHAM Respondent
REASONS FOR JUDGMENT
PETER BAWDEN J. Released: May 23, 2019