Michaels v. Bogun (Estate)
The minutes of settlement were not a binding agreement because they omitted material and fundamental terms (regarding second mortgage encumbrance and protection of a right of first refusal), and alternatively the appellant repudiated any agreement by his conduct; therefore the appeal is dismissed and costs awarded...
Source-derived case information.
- Citation
- C43618
- Parties
- Applicant/appellant: Joseph Michaels; Respondent: Danuta Nieweglowski, Estate Trustee of the Estate of Helena Bogun (also known as Helena Michalak); Respondent: Danuta Nieweglowski; Respondent: Mark Nieweglowski
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 18 January 2006
- Procedural Posture
- Civil / Appeal From Superior Court of Justice Decision
- Outcome
- Appeal dismissed
- Legal Topics
- Minutes of Settlement, Enforceability of Settlement Agreements, Repudiation, Costs, Right of First Refusal, Second Mortgage, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Michaels
Applicant/appellant
Danuta Nieweglowski, Estate Trustee of the Estate of Helena Bogun (also known as Helena Michalak)
Respondent
Danuta Nieweglowski
Respondent
Mark Nieweglowski
Respondent
Procedural Posture
Civil / Appeal From Superior Court of Justice Decision
Legal Issues
- 1 Whether the minutes of settlement contained material and fundamental terms sufficient to form a binding agreement
- 2 Whether the appellant repudiated any agreement by his conduct between October 2004 and May 2005
- 3 Whether costs should be awarded and the appropriate quantum
Ratio Decidendi
The minutes of settlement were not a binding agreement because they omitted material and fundamental terms (regarding second mortgage encumbrance and protection of a right of first refusal), and alternatively the appellant repudiated any agreement by his conduct; therefore the appeal is dismissed and costs awarded to the respondents.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs on a full indemnity basis to the respondents payable out of the estate in the amount of $10,000 inclusive of disbursements and GST
Full Case Text
Judgment text and source record
1 paragraphs
Michaels v. Bogun (Estate) Collection Decisions of the Court of Appeal Date 2006-01-18 Docket numbers C43618 Judges Doherty, David H.; Sharpe, Robert J.; Armstrong, Robert Patrick Subject Civil Decision Content DATE: 20060117 DOCKET: C43618 COURT OF APPEAL FOR ONTARIO RE: JOSEPH MICHAELS (Applicant/Appellant) v. DANUTA NIEWEGLOWSKI, ESTATE TRUSTEE OF THE ESTATE OF HELENA BOGUN (also known as HELENA MICHALAK), DANUTA NIEWEGLOWSKI and MARK NIEWEGLOWSKI (Respondents) BEFORE: DOHERTY, SHARPE and ARMSTRONG JJ.A. COUNSEL: James McReynolds for the appellant Charles Ruttan for the respondent HEARD & ENDORSED: January 16, 2006 On appeal from the order of Justice Graham of the Superior Court of Justice dated May 24, 2005. APPEAL BOOK ENDORSEMENT [1] While there were procedural shortcomings in the proceedings before Howden J., we are satisfied that any potential prejudice to the appellant was avoided by what amounted to a de novo hearing on the merits before Graham J. [2] Graham J. held that the purported Minutes of Settlement lacked “material and fundamental terms”. We agree. The terms of the Minutes of Settlement did not address the extent to which the appellant could encumber the equity in the property by way of a second mortgage and did not protect the right of first refusal granted to the respondent in the event of various occurrences such as foreclosure, or a gift of the property by the appellant. [3] We also agree with the submission that even if there was an agreement to settle the claim, the appellant repudiated that agreement by his conduct between October 2004 and May 2005. That conduct includes his failure to respond to any inquiries from his own lawyer and the respondents’ lawyer, his failure to execute the necessary documents in a timely fashion, and his failure to maintain the property between October 2004 and May 2005 while he was in possession. [4] The appeal is dismissed. Costs on a full indemnity basis to the respondents payable out of the estate in the amount of $10,000, inclusive of disbursements and GST.