Siyamson Pathmanathan

Following a successful appeal in which the appellants were awarded a 50% interest in a residential property, the court addressed trial costs.

The appellants sought approximately $155,000 in costs on a substantial indemnity basis, arguing the result beat their offer to settle.

The court declined, finding the result did not beat the offer because the appellants were awarded 50% ownership rather than 50% of the equity, with the equity value remaining to be determined on a subsequent accounting.

Trial costs were awarded on a partial indemnity basis in the amount of $70,000 all inclusive.

The appeal arose from a dispute over whether a substantial contribution to a home purchase created a beneficial ownership interest under resulting trust principles.

The majority held the trial judge made a legal error by disregarding key third-party evidence probative of the transferor’s objective intention and allowed the appeal.

The court declared the appellants entitled to a 50% beneficial interest in the property, set aside the judgment and costs below, and remitted related sale and accounting remedies for case management.

A dissent would have dismissed the appeal, finding no reversible legal or factual error and concluding the transfer was supported by consideration.

The plaintiff, Damodar Arapakota, brought a motion to cure an administrative error by the court, to note the defendant, Haji Makki, in default, and for leave to bring a motion for default judgment.

The court found that the defendant was in default as of August 14, 2023, but due to an administrative error, the default was not recorded.

The court granted the motion to note the defendant in default but immediately set aside the noting in default, finding that the defendant had an arguable defence, the delay was not unreasonable, and there was no non-compensable prejudice to the plaintiff.

The matter was ordered to proceed on its merits.

The plaintiff moved to set aside a previous order that had set aside a default judgment against one defendant, alleging fraud and misconduct by opposing counsel.

The court dismissed this motion, finding no evidence of fraud and concluding that the plaintiff's counsel deliberately chose not to participate in the earlier hearing, thus precluding relief under Rule 37.14(1).

The court also granted the plaintiff's separate motion to correct the name of the other defendant in the default judgment and writ of seizure and sale.

Costs were ordered to be borne by each party due to shared blame for the procedural issues.