Carbone v. Zderic

Carbone v. Zderic

Because there was no allegation in the statement of claim or the initial affidavit that the appellant signed the promissory notes nor any allegation of fraudulent conduct, and because the second affidavit relied on by the motion judge was never served and no order excused service, the findings of liability on the promissory notes, false pretenses/fraudulent misrepresentation and punitive damages against the appellant could not stand; accordingly those portions were set aside and the costs award was reduced from full indemnity to $7,500 on a partial indemnity scale.

Citation
2014 ONCA 849
Parties
Plaintiff/respondent: Francesco Carbone; Defendant/appellant: Zeljko A. Zderic a.k.a. Zeljko Zeluca Zderic a.k.a. Sasha Vujacic a.k.a. Sasa Vujacic a.k.a. Sasaa Vujacic a.k.a. Alex Vujicic a.k.a. Aleksandar Vujicic a.k.a. Alex Visser a.k.a. Pavle Kolic; Defendant/appellant: Brenda Kover a.k.a. Brenda Marie Joyce Kover
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 November 2014
Procedural Posture
Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Superior Court of Justice (motion for Summary Judgment)
Outcome
Appeal allowed in part; portions of the judgment against the appellant relating to the two promissory notes, findings of fraud/false pretenses and punitive damages set aside; costs varied.
Legal Topics
Promissory Notes, Fraud, False Pretenses, Fraudulent Misrepresentation, Punitive Damages, Costs, Summary Judgment, Service of Affidavit
Source Language
English
Civil Contract Tort Procedural Law Appeals Promissory Notes Fraud False Pretenses +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Francesco Carbone

Plaintiff/respondent

Zeljko A. Zderic a.k.a. Zeljko Zeluca Zderic a.k.a. Sasha Vujacic a.k.a. Sasa Vujacic a.k.a. Sasaa Vujacic a.k.a. Alex Vujicic a.k.a. Aleksandar Vujicic a.k.a. Alex Visser a.k.a. Pavle Kolic

Defendant/appellant

Brenda Kover a.k.a. Brenda Marie Joyce Kover

Defendant/appellant

Procedural Posture

Civil Appeal From Summary Judgment / Court of Appeal Decision on Appeal From Superior Court of Justice (motion for Summary Judgment)

Legal Issues

  1. 1 Whether appellant was liable on the two promissory notes
  2. 2 Whether monies were obtained by fraud or false pretenses
  3. 3 Whether appellant signed the promissory notes

Ratio Decidendi

Because there was no allegation in the statement of claim or the initial affidavit that the appellant signed the promissory notes nor any allegation of fraudulent conduct, and because the second affidavit relied on by the motion judge was never served and no order excused service, the findings of liability on the promissory notes, false pretenses/fraudulent misrepresentation and punitive damages against the appellant could not stand; accordingly those portions were set aside and the costs award was reduced from full indemnity to $7,500 on a partial indemnity scale.

Court Disposition

Appeal allowed in part; portions of the judgment against the appellant relating to the two promissory notes, findings of fraud/false pretenses and punitive damages set aside; costs varied.

Orders

  • Portions of the judgment relating to the two promissory notes, findings of false pretenses or fraudulent misrepresentation and the award of punitive damages against the appellant are set aside.
  • The costs award below as against the appellant is varied to $7,500 on a partial indemnity scale.