Sean Butt

The Estate Trustee of a deceased co-owner sought partition and sale of a property held as tenants in common with the deceased's three brothers.

The respondents failed to engage in discussions or respond to the application.

The court granted the application for partition and sale, affirming the prima facie right of an owner to such an order unless malicious, vexatious, or oppressive conduct is proven.

Due to the respondents' non-cooperation, the applicant was granted carriage of the sale, with the court dispensing with the need for respondents' consent or signatures for sale-related documents.

The plaintiff was successful on a motion for a status hearing and successfully defended the defendant's motion to dismiss the action for delay.

The plaintiff sought costs of $36,301.47 on a substantial indemnity basis or $20,220.19 on a partial indemnity basis.

The court declined to award costs to the plaintiff, finding that the plaintiff had required an indulgence from the court to proceed with the action due to delay, and had improperly set the matter down for trial without a status hearing.

Each party was ordered to bear their own costs.

The plaintiff, a creditor of a bankrupt lawyer, sought to proceed with an action to collect a debt allegedly owed by the defendant, a former client of the lawyer.

The defendant moved to dismiss the action for delay, citing the 11.5 years since the action commenced.

The court found that while the delay was inordinate, it was excusable due to the lawyer's bankruptcy and the time required for the plaintiff to obtain a section 38 order under the Bankruptcy and Insolvency Act.

The court also found no substantial risk to a fair trial, as relevant documents and witnesses were available.

The defendant's motion to dismiss was denied, and the action was allowed to proceed.

The Master addressed a dispute over costs and interest following the full payment and discharge of a mortgage.

The defendant, Juleth Dawson, sought a credit for amounts paid, including a higher post-default interest rate and legal fees incurred by the mortgagee in an unsuccessful motion to add her spouse, Rod Byrnes, to the action.

The Master clarified an earlier misunderstanding regarding the application of Rule 64 (Mortgage Actions) and applied Rule 1.04 (proportionality).

The Master found it inappropriate to grant full indemnity for costs of a motion lost by the lender and for initiating a second action against a party who was subsequently dismissed with no costs.

An overall net credit of $6500 was fixed to be repaid to Juleth Dawson.

The plaintiff mortgagee commenced an action against the mortgagor for a defaulted mortgage.

Upon discovering the mortgagor's spouse resided in the property, the plaintiff added the spouse to the claim to preserve any potential possessory rights under the Family Law Act.

The spouse brought a motion to dismiss the action against him, confirming he had permanently renounced all possessory rights in a prior separation agreement.

The court granted the motion and dismissed the action against the spouse, with no order as to costs.

The defendant moved to set aside a default judgment obtained by the plaintiff bank for a credit card debt.

The defendant argued he had an arguable defence of equitable set-off, alleging the plaintiff intentionally interfered with payments owed to him under a separate settlement agreement involving his company.

The court found that while the defendant did not move promptly or provide a plausible excuse for the default, he successfully established an arguable defence of equitable set-off.

The court concluded it was just to relieve the defendant from the consequences of his default and set aside the judgment.

The appellant appealed an order dismissing his motion.

The Court of Appeal found that the motion judge erred in concluding the appellant had requested numerous extensions prior to default judgment being signed.

The motion judge also erred by failing to consider whether the counterclaim raised a set-off when declining to grant the appellant an opportunity to file a motion to set aside the default judgment.

The appeal was allowed, and the appellant was granted 15 days to deliver a motion to set aside the default judgment.

The appellant appealed a decision striking out his Statement of Defence and granting default judgment to the respondent bank for money owed on a visa account and personal line of credit.

The appellant had previously sued the bank in Small Claims Court over a set-off of funds, which he lost.

The Divisional Court dismissed the appeal, finding no error in the motion judge's decision and noting that the appellant's defence was based on allegations already decided in Small Claims Court, rendering them subject to res judicata and cause of action estoppel.

The applicant appealed a decision dismissing his claim against the respondent bank for seizing a GIC and funds from his savings account to satisfy overdue credit card charges.

The applicant argued his signature on the security pledge agreements was forged.

The Divisional Court found no palpable and overriding error in the trial judge's factual finding that the applicant signed the agreements.

Furthermore, the court upheld the finding that the bank was entitled to exercise its common law right of set off.

The appeal was dismissed.