Tham v. Lee

Tham v. Lee

Because only a potential future liability for capital gains tax and recapture existed and no existing claims capable of giving rise to a set-off were shown, the motion judge did not err in refusing to order that the set-off issue proceed to trial; appeal dismissed.

Citation
2007 ONCA 228
Parties
Plaintiff (respondent): Kwang Yin Tham; Plaintiff (respondent): Ya-Li Chen; Defendant (appellant): John Lee; Defendant (appellant): Mary Huang; Defendant (appellant): Hing Loong Investments Limited
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
29 March 2007
Procedural Posture
Civil / Appeal to Court of Appeal From Superior Court Judgment (motion for Summary Judgment)
Outcome
Appeal dismissed with costs to respondents.
Legal Topics
Set Off, Capital Gains Tax, Recapture, Summary Judgment, Stay of Enforcement, Assignment of Promissory Notes
Source Language
English
Civil Tax Civil Procedure Set Off Capital Gains Tax Recapture Summary Judgment Stay of Enforcement +1 more

Case Brief

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Parties

Kwang Yin Tham

Plaintiff (respondent)

Ya-Li Chen

Plaintiff (respondent)

John Lee

Defendant (appellant)

Mary Huang

Defendant (appellant)

Hing Loong Investments Limited

Defendant (appellant)

Procedural Posture

Civil / Appeal to Court of Appeal From Superior Court Judgment (motion for Summary Judgment)

Legal Issues

  1. 1 Whether the motion judge erred in refusing to order that the issue of availability of a set-off for capital gains tax and recapture proceed to trial
  2. 2 Whether a potential future tax liability can give rise to an existing claim for set-off
  3. 3 Whether appellants may seek stay of enforcement pending resolution of alleged tax claims

Ratio Decidendi

Because only a potential future liability for capital gains tax and recapture existed and no existing claims capable of giving rise to a set-off were shown, the motion judge did not err in refusing to order that the set-off issue proceed to trial; appeal dismissed.

Court Disposition

Appeal dismissed with costs to respondents.

Orders

  • Appeal dismissed.
  • Costs to respondents fixed at $7,500.00 inclusive of disbursements and applicable G.S.T.