Sammut v. Sammut

Sammut v. Sammut

The Court of Appeal upheld the motion judge's exercise of discretion in refusing to set aside the default/summary judgment because the appellant failed to update service information and had notice; however the court reduced the damages award to $289,740.39 by apportioning certain monetary losses to the respondent's 25% interest in the property and removing personal expenses; appeal otherwise dismissed and costs of appeal borne by each party.

Citation
2018 ONCA 507
Parties
Plaintiff/respondent: Charles Sammut; Defendant/moving Party (appellant/respondent): Susanne Sammut; Defendant/moving Party (appellant/respondent): Josephine Spiteri; Plaintiff by Counterclaim: Josephine Spiteri; Defendant by Counterclaim: Charles Sammut; Defendant by Counterclaim: Royal Bank of Canada; Defendant by Counterclaim: Manju Gujot Sekhon; Defendant by Counterclaim: The Estate of Dennis Ray Cook (by Estate Trustee Roberta Gladys McLean)
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
1 June 2018
Procedural Posture
Civil Appeal (set Aside Default Judgment and Summary Judgment) / Court of Appeal Decision on Appeal From Superior Court Order Dated December 20, 2017
Outcome
Appeal allowed in part: damages reduced to $289,740.39; remainder of appeal dismissed.
Legal Topics
Default Judgment, Setting Aside, Service of Process, Summary Judgment, Damages Quantification, Fraud, Survival of Debt in Bankruptcy
Source Language
English
Civil Tort Property Bankruptcy and Insolvency Procedure Default Judgment Setting Aside Service of Process +4 more

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Parties

Charles Sammut

Plaintiff/respondent

Susanne Sammut

Defendant/moving Party (appellant/respondent)

Josephine Spiteri

Defendant/moving Party (appellant/respondent)

Josephine Spiteri

Plaintiff by Counterclaim

Charles Sammut

Defendant by Counterclaim

Royal Bank of Canada

Defendant by Counterclaim

Manju Gujot Sekhon

Defendant by Counterclaim

The Estate of Dennis Ray Cook (by Estate Trustee Roberta Gladys McLean)

Defendant by Counterclaim

Procedural Posture

Civil Appeal (set Aside Default Judgment and Summary Judgment) / Court of Appeal Decision on Appeal From Superior Court Order Dated December 20, 2017

Legal Issues

  1. 1 Whether the default judgment and summary judgment should be set aside for lack of proper service
  2. 2 Whether the motion judge applied correct test in refusing to set aside default judgment
  3. 3 Whether the quantification of damages in the summary judgment should be disturbed

Ratio Decidendi

The Court of Appeal upheld the motion judge's exercise of discretion in refusing to set aside the default/summary judgment because the appellant failed to update service information and had notice; however the court reduced the damages award to $289,740.39 by apportioning certain monetary losses to the respondent's 25% interest in the property and removing personal expenses; appeal otherwise dismissed and costs of appeal borne by each party.

Court Disposition

Appeal allowed in part: damages reduced to $289,740.39; remainder of appeal dismissed.

Orders

  • Reduce judgment to $289,740.39
  • Each party shall bear its own costs of the appeal