BARRIE COURT FILE NO.: CV-19-000624-00
DATE: 20190809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anna Colavita
Applicant/Plaintiff
– and –
Catherine Tourikian and Nest Properties Inc.
Respondent/Defendant
Joseph Dalimonte, for the Applicant/Plaintiff
Ian Perry, for the Respondent/Defendant
HEARD: April 30, 2019
ENDORSEMENT
DE SA J.:
[1] The Applicant, Anna Colavita, brought an application for an Order deleting a temporary restraining Order and a caution on the subject property known as 101 Freshway Drive, Unit 49, Vaughan, Ontario (the “Property”). The caution had been placed on the Property by Ned Erkman, a principal of Nest Properties Inc., the Respondent.
[2] On April 30, 2019, I granted the application in part. The caution was removed to permit the Property to be sold, and the proceeds to be distributed to the Applicant, subject to $200,000. The $200,000 was to be held in the trust account of Mr. Conte, counsel of Ms. Colavita, pending further submissions from the parties.
[3] The Property was initially purchased by Nest Properties Inc. In order to acquire the Property, Nest Properties Inc. obtained mortgage financing in the principal amount of $189,000 (the “First Mortgage”) with both Ned Erkman and Serge Tourikian providing guarantees under the First Mortgage (each 50% shareholders in Nest Properties Inc.). Ned Erkman and Serge Tourikian also each paid $50,000 towards the purchase of the Property.
[4] Ultimately, a second mortgage in the amount of $105,000 (the “Second Mortgage”) was taken on the Property by Nest Properties Inc. with a view to maintaining its financial obligations.
[5] At some point, the Applicant took an assignment of the mortgages. Anna Colavita sought payment from Nest Properties Inc. under the First and Second Mortgages. However, Nest Properties Inc. was unable to meet its financial obligations under these mortgages. Accordingly, Anna Colavita commenced an action against Nest Properties Inc. and obtained a Writ of Possession for the Property.
[6] There is no dispute that there was more owing on the mortgages by Nest Properties Inc. than the Property itself was worth. That is clear.
[7] Moreover, the materials filed on the application confirm that the proceeds from the sale of the Property are not sufficient to satisfy the amounts owing to the Applicant by Nest Properties Inc.
[8] Accordingly, I order the $200,000 be released to the Applicant, Anna Colavita.
Justice C.F. de Sa
Released: August 9, 2019