Padelt v. Show Fong Lu
The appeal was dismissed because the trial judge's factual finding that the mortgagee reasonably preserved and maintained the property was supported by evidence and was open to the trial judge; there was no basis for appellate interference and the costs award was proper.
Source-derived case information.
- Citation
- 2010 ONCA 69
- Parties
- Plaintiff: John Joseph Padelt; Defendant: 638506 Ontario Inc.; Defendant: Roberta Lu; Defendant (appellant): Show Fong Lu
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 28 January 2010
- Procedural Posture
- Civil / Appeal to Court of Appeal From Trial Judgment Dated March 3, 2008
- Outcome
- Appeal dismissed
- Legal Topics
- Mortgagee Duty to Preserve Property, Maintenance of Security, Standard of Review on Appeal, Costs Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Joseph Padelt
Plaintiff
638506 Ontario Inc.
Defendant
Roberta Lu
Defendant
Show Fong Lu
Defendant (appellant)
Procedural Posture
Civil / Appeal to Court of Appeal From Trial Judgment Dated March 3, 2008
Legal Issues
- 1 Whether the mortgagee was negligent in managing the property and allowed it to fall into disrepair reducing its value
- 2 Whether the trial judge's factual findings were open to appellate interference
- 3 Whether the costs award was appropriate
Ratio Decidendi
The appeal was dismissed because the trial judge's factual finding that the mortgagee reasonably preserved and maintained the property was supported by evidence and was open to the trial judge; there was no basis for appellate interference and the costs award was proper.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to respondent fixed at $7,700 inclusive of G.S.T. and disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Padelt v. Show Fong Lu Collection Decisions of the Court of Appeal Date 2010-01-28 Neutral citation 2010 ONCA 69 Docket numbers C49603 Judges Moldaver, Michael James; MacPherson, James C.; LaForme, Harry Smith Subject Civil Decision Content CITATION: Padelt v. Show Fong Lu, 2010 ONCA 69 DATE: 20100127 DOCKET: C49603 COURT OF APPEAL FOR ONTARIO Moldaver, MacPherson and LaForme JJ.A. BETWEEN: John Joseph Padelt Plaintiff (Respondent) and 638506 Ontario Inc. and Roberta Lu and Show Fong Lu Defendants (Appellant, Show Fung Lu) Gregory D. Wrigglesworth, for the appellant Show Fung Lu Lianne Armstrong, for the respondent Heard and endorsed: January 26, 2010 On appeal from the judgment of Justice Edward Ducharme of the Superior Court of Justice dated March 3, 2008. APPEAL BOOK ENDORSEMENT [1] This appeal is essentially fact driven. In his able argument, Mr. Wrigglesworth submits that the trial judge erred in concluding that the respondent mortgagee was not negligent in managing the property or, conversely, that he let the property fall into disrepair, thereby decreasing its value. [2] We disagree. The trial judge gave careful and cogent reasons for concluding that the respondent mortgagee complied with his obligations to reasonably maintain the property pending its sale. As he observed at para. 89 of his reasons, viewed fairly, and having particular regard to Mr. McLandress’s statement, which he accepted, maintenance of the property “was not a major issue. When an isolated problem arose – a window broken, a complaint about the length of the grass, the presence of an abandoned vehicle – Mr. McLandress dealt with it. In so doing, he discharged the mortgagee’s duty to preserve and maintain the property as a reasonable, prudent owner would”. [3] In our view, that finding was open to the trial judge and we see no basis for interfering with it. [4] As for costs, the trial judge considered all of the relevant factors and we see no error in his analysis or conclusion. [5] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $7,700 inclusive of G.S.T. and disbursements.