Skyline Equities V Inc. v. Stocco
The Court held that the conduct of the parties and their solicitor in January and February 2002 established an implied term that the second mortgage transaction would not be completed if it would trigger a default under the first mortgage; the trial judge erred in treating the written terms as exhaustive and the...
Source-derived case information.
- Citation
- C44317
- Parties
- Plaintiff (defendant by Counterclaim) Respondent: Skyline Equities V Inc.; Defendant (plaintiff by Counterclaim) Appellant: Giuseppe Stocco
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 24 May 2006
- Procedural Posture
- Civil Appeal / Court of Appeal Decision on Appeal From Superior Court Judgment
- Outcome
- Appeal allowed in part; action dismissed without costs; appeal regarding the counterclaim dismissed; costs of appeal to appellant fixed at $7,713.49 on a partial indemnity basis
- Legal Topics
- Implied Term, Second Mortgage, Priority, Default, Costs
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Skyline Equities V Inc.
Plaintiff (defendant by Counterclaim) Respondent
Giuseppe Stocco
Defendant (plaintiff by Counterclaim) Appellant
Procedural Posture
Civil Appeal / Court of Appeal Decision on Appeal From Superior Court Judgment
Legal Issues
- 1 Whether the agreement to make a second mortgage contained an implied term that the first mortgage would be in good standing and contain no unwaived restrictions on subsequent encumbrances
- 2 Whether the trial judge erred in concluding that the written terms of the second mortgage agreement were the only terms
Ratio Decidendi
The Court held that the conduct of the parties and their solicitor in January and February 2002 established an implied term that the second mortgage transaction would not be completed if it would trigger a default under the first mortgage; the trial judge erred in treating the written terms as exhaustive and the appeal was allowed, resulting in dismissal of the action and partial allowance of costs to the appellant.
Court Disposition
Appeal allowed in part; action dismissed without costs; appeal regarding the counterclaim dismissed; costs of appeal to appellant fixed at $7,713.49 on a partial indemnity basis
Orders
- Appeal allowed
- Action dismissed without costs
Full Case Text
Judgment text and source record
1 paragraphs
Skyline Equities V Inc. v. Stocco Collection Decisions of the Court of Appeal Date 2006-05-24 Docket numbers C44317 Judges Labrosse, Jean-Marc; Moldaver, Michael James; Feldman, Kathryn N. Subject Civil Decision Content DATE: 20060523 DOCKET: C44317 COURT OF APPEAL FOR ONTARIO RE: SKYLINE EQUITIES V INC. (Plaintiff (Defendant by Counterclaim) Respondent)) – and – GUISEPPE STOCCO (Defendant (Plaintiff by Counterclaim) Appellant)) BEFORE: LABROSSE, MOLDAVER and FELDMAN JJ.A. COUNSEL: Simon J. Adler for the appellant W.H. Peter Madorin for the respondent HEARD & ENDORSED: May 19, 2006 On appeal from the judgment of Justice P.J. Flynn of the Superior Court of Justice dated September 15, 2005 at Kitchener. APPEAL BOOK ENDORSEMENT [1] The issue on this appeal is whether an agreement to make a second mortgage loan contained an implied term that the first mortgage would be in good standing and that it contain no restrictions on subsequent encumbrances that had not been waived. [2] With respect to the trial judge, in our view he erred by concluding that on the evidence, the written terms of the second mortgage agreement were the only terms of that agreement. In our view, the conduct of the parties and of their solicitor both in January 2002 and in February 2002 make it clear that it was an implied term that the second mortgage transaction would not be completed, if that action triggered a default under the first mortgage. [3] Accordingly, the appeal is allowed and the action is dismissed without costs. The appeal with respect to the counterclaim is dismissed. Costs of the appeal on a partial indemnity basis to the appellant fixed at $7,713.49.