Thomas M. Conway

The appellant appealed a summary judgment dismissing his action against the respondent vendors for alleged misrepresentation regarding an easement.

The Court of Appeal upheld the motion judge's finding that there was no misrepresentation, noting the appellant was fully aware of the easement's use prior to closing and failed to adduce any evidence of damages caused by the vendors.

The appeal was dismissed with costs.

The appellant, a jewellery consultant, entered into consignment agreements with a retailer, requiring proceeds to be held in a separate trust account.

The retailer opened an account with the respondent bank, but the bank incorporated it into a consolidated off-set balance system, using the funds to offset the retailer's debts.

The Court of Appeal allowed the appeal, finding the funds were impressed with a trust and the bank had constructive knowledge of the trust because it failed to follow its own account agreement requiring two signatures before transferring funds.

The appellants appealed an order refusing to set aside a summary judgment in favour of a bank, alleging that the record before the summary judgment judge was fraudulent and incomplete and seeking to file after-acquired documents as fresh evidence.

The court held that the motion record was neither fraudulent nor incomplete, and that the appellants' complaints were really arguments that should have been advanced on the original summary judgment motion.

Because the challenge to the primary debtors failed, there was no basis to discharge the guarantor.

The appeal was dismissed with costs.