Preiano v. Cirillo

Preiano v. Cirillo

The motion judge erred by drawing an unsupported inference that the retained personal cheque was non‑negotiable from an authenticated bank statement; there was no evidence the cheque would have been dishonoured and the certified funds were later provided, so the dismissal for failure to pay the deposit on time was...

Source-derived case information.

Citation
2017 ONCA 615
Parties
Plaintiffs (appellants): Sonia Preiano and Gianluca Preiano; Defendants (respondents): Giuseppe Cirillo; the Estate of Giuseppe Cirillo; Antonia Cirillo
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
24 July 2017
Procedural Posture
Civil / Appeal From Motion Decision Dismissing Action (court of Appeal Review of Superior Court Motion Ruling)
Outcome
Order dismissing action set aside; action, cross‑claims and third party claims restored to the trial list; appellants granted leave to amend; respondents ordered to pay costs.
Legal Topics
Specific Performance, Deposit, Part Performance, Waiver, Estoppel, Rules of Civil Procedure R.21.01, Summary Disposition/procedural Fairness
Source Language
english
Contract Real Property Civil Procedure Equity Specific Performance Deposit Part Performance Waiver +3 more

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Parties

Sonia Preiano and Gianluca Preiano

Plaintiffs (appellants)

Giuseppe Cirillo; the Estate of Giuseppe Cirillo; Antonia Cirillo

Defendants (respondents)

Procedural Posture

Civil / Appeal From Motion Decision Dismissing Action (court of Appeal Review of Superior Court Motion Ruling)

Legal Issues

  1. 1 Whether a deposit delivered as a personal cheque retained by the vendor's agent constituted timely payment under the APS
  2. 2 Whether the motion judge properly admitted and relied on contested evidence on a r.21.01 motion
  3. 3 Whether the motion judge was entitled to infer the personal cheque was non‑negotiable from an authenticated bank statement

Ratio Decidendi

The motion judge erred by drawing an unsupported inference that the retained personal cheque was non‑negotiable from an authenticated bank statement; there was no evidence the cheque would have been dishonoured and the certified funds were later provided, so the dismissal for failure to pay the deposit on time was unsupportable. The order is set aside and the action restored; leave to amend granted and costs awarded to the appellants.

Court Disposition

Order dismissing action set aside; action, cross‑claims and third party claims restored to the trial list; appellants granted leave to amend; respondents ordered to pay costs.

Orders

  • Set aside motion judge's dismissal order
  • Restore action, cross‑claims and third party claims to the trial list