Skyline Equities V Inc. v. Stocco

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
Civil Contract Property Mortgage Implied Term Second Mortgage Priority Default +1 more

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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. 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. 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