S. Hussain

The appellants appealed a Small Claims Court decision ordering them to pay $24,478.63 in real estate commissions to the respondents.

The appellants argued the Deputy Judge erred in finding an enforceable oral agreement and in applying the principles of unjust enrichment after they purchased a property using the seller's agent instead of the respondents.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's factual inferences or application of the law of unjust enrichment.

Following a reference to determine the amount owing under a second mortgage and the sale of the property, the court determined the costs of the proceeding.

The second mortgagee was awarded $20,000 in partial indemnity costs against the mortgagors and the third mortgagee, exhausting the remaining surplus funds.

The court also awarded substantial indemnity costs against the third mortgagee for unnecessarily causing the second mortgagee and a former counsel to prepare for a costs hearing on claims that were abandoned at the last minute.

The court declined to determine the validity of the third mortgage as no surplus funds remained.