Court File and Parties

COURT FILE NO.: CV-21-00667652 DATE: 20230704 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JAMES KWEI SENG also known as KWEI HWA SENG, Plaintiff AND: 1618964 ONTARIO INC., RENISHAKI KAMALANATHAN, and ESTATE OF PONNADURAI KAMALANATHAN, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: L. Wong, for the Plaintiff J. Van Allen for the Defendants’ former counsel M. Kohl R. Kamalanathan, in person for the Defendants

HEARD: July 4, 2023

ENDORSEMENT

Overview

[1] The plaintiff advanced loans to the defendants, one of whom is now deceased. The plaintiff brought a motion for a mareva injunction to be applied to the proceeds of sale of one commercial property owned by the defendants. The closing is scheduled for July 31, 2023.

[2] Centa J. directed that the motion must be heard on notice.

[3] Today the motion proceeded before me.

Reasons for the adjournment

[4] A lawyer for the defendants’ previous lawyer attended. She represents LAWPRO and advised that the defendants’ former lawyer stopped practicing law in or around July 2022. She advised that this lawyer did not file a notice of intent to defend. She also advised that although the plaintiff did serve these motion materials on the defendants’ former lawyer, he never forwarded them to the defendants because he did not have their address or other contact information.

[5] Ms. Kamalanathan attended in person on her own behalf and on behalf of the other defendants. She advised that she learned of this motion this morning at 9:45 am from a business advisor who attended a mediation with her. Although the plaintiff has an affidavit of service which indicates that it left the motion materials with an adult at an address which was the last known address of the defendants, Ms. Kamalanathan said they did not receive the motion materials because the defendants have moved.

[6] Given that Centa J. directed that this motion must proceed on notice, I must adjourn this motion. However, there will be terms.

Terms

[7] First, the motion is adjourned to July 13, 2023 at 10:00 am for two hours.

[8] Second, I am making an order for substituted service to permit the plaintiff to serve the defendants by email to renishaki.k@gmail.com. I note that Ms. Kamalanathan did not wish to provide her new address for reasons which are unclear at this stage. I do not think that is an appropriate submission; however, since she is currently self-represented and prepared to be served by email, for the time being, I will make no order in this regard.

[9] Third, if the defendants intend to provide materials in opposition to the motion, they must do so by July 10, 2023. I am encouraging the defendants to obtain a lawyer, but if they cannot, the motion will still proceed.

[10] Fourth, as noted above, the sale of the commercial property is scheduled to close on July 31, 2023. The plaintiff claims it is owed over $650,000 and when the motion proceeds, the ultimate order it seeks is that any excess funds above amounts required to repay any mortgage on the property, be paid into court to the credit of this action.

[11] Given the fact that the defendants are seeking an adjournment, in the exercise of my discretion, I am ordering the further interim term, that if the sale closes prior to July 31, 2023, or prior to the release of my decision in this matter, any funds in excess of amounts required to repay any mortgage financing shall be paid to the plaintiff’s counsel who shall hold such funds in trust until further order from this court.

[12] As well at the return of the motion, I will address the issue of the defendants’ refusal to provide their physical address for service and ask the plaintiff and the defendants to provide any law related to this.

[13] The plaintiff may deliver a draft order to my attention regarding this adjournment as well as the terms imposed by emailing my assistant polly.diamante@ontario.ca.

[14] Costs of this attendance shall be reserved to the motions judge.

[15] I am seized of this motion.

Justice Papageorgiou Date: July 4, 2023