Misir v. Misir

Misir v. Misir

The appeal was allowed because the respondent failed to make full and fair disclosure of material facts when he and his then counsel attended court without notice, which led to reinstatement of a default judgment; consequently the reinstatement and sale orders were set aside, costs of the appeal were fixed at $5,000 inclusive, no costs were awarded for the Superior Court proceedings, and funds paid into court were released to the appellant.

Citation
2017 ONCA 810
Parties
Plaintiff (respondent in Appeal): Randy Misir; Defendant (appellant): Geree Misir; Defendant (appellant): Rajendra Narine (a.k.a. Hardial Singh)
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
23 October 2017
Procedural Posture
Civil Appeal From Superior Court of Justice / Court of Appeal Decision and Costs Endorsement Following Allowance of Appeal
Outcome
Appeal allowed; orders reinstating the default judgment and permitting sale set aside; costs awarded to appellants for the appeal only; funds paid into court released to appellant
Legal Topics
Default Judgment, Ex Parte Disclosure, Reinstatement of Judgment, Costs Assessment, Release of Funds Paid Into Court
Source Language
English
Civil Procedure Appeals Costs Default Judgment Ex Parte Disclosure Reinstatement of Judgment Costs Assessment Release of Funds Paid Into Court

Case Brief

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Parties

Randy Misir

Plaintiff (respondent in Appeal)

Geree Misir

Defendant (appellant)

Rajendra Narine (a.k.a. Hardial Singh)

Defendant (appellant)

Procedural Posture

Civil Appeal From Superior Court of Justice / Court of Appeal Decision and Costs Endorsement Following Allowance of Appeal

Legal Issues

  1. 1 Whether a default judgment reinstated without notice should be set aside for failure to disclose material facts
  2. 2 Whether appellants are entitled to substantial or partial indemnity costs and costs of the proceedings below
  3. 3 Whether funds paid into court should be released to the appellant

Ratio Decidendi

The appeal was allowed because the respondent failed to make full and fair disclosure of material facts when he and his then counsel attended court without notice, which led to reinstatement of a default judgment; consequently the reinstatement and sale orders were set aside, costs of the appeal were fixed at $5,000 inclusive, no costs were awarded for the Superior Court proceedings, and funds paid into court were released to the appellant.

Court Disposition

Appeal allowed; orders reinstating the default judgment and permitting sale set aside; costs awarded to appellants for the appeal only; funds paid into court released to appellant

Orders

  • Appeal allowed and orders reinstating default judgment and permitting sale set aside
  • Costs of the appeal awarded to the appellants in the amount of $5,000 inclusive of disbursements and taxes