Roy v. Kretschmer

Roy v. Kretschmer

Because there was at least a thread of merit to the appeal, sufficient funds from the agreed sale were available and held in respondents' counsel's trust account to secure the judgment and costs, and the interests of justice favored hearing the appeal on its merits, the Court declined to dismiss the appeal and varied the security order to require specified funds to be held in trust and expedited the hearing.

Citation
2014 BCCA 263
Parties
Respondent (plaintiff): Richard Roy; Respondent (plaintiff): Dianne Roy; Appellant (defendant): Dennis Kretschmer
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
24 June 2014
Procedural Posture
Civil Appeal / Interlocutory Applications to Vary Security and to Dismiss Appeal; Directions for Expedited Hearing
Outcome
Application to dismiss denied; application to vary security allowed; appeal to proceed and hearing expedited.
Legal Topics
Security for Judgment, Variation of Court Order, Dismissal for Non Compliance, Funds Held in Counsel Trust Account, Expedited Hearing
Source Language
English
Civil Procedure Appeal Costs Trusts Security for Judgment Variation of Court Order Dismissal for Non Compliance Funds Held in Counsel Trust Account +1 more

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Parties

Richard Roy

Respondent (plaintiff)

Dianne Roy

Respondent (plaintiff)

Dennis Kretschmer

Appellant (defendant)

Procedural Posture

Civil Appeal / Interlocutory Applications to Vary Security and to Dismiss Appeal; Directions for Expedited Hearing

Legal Issues

  1. 1 Whether the appeal should be dismissed for failure to post security as ordered
  2. 2 Whether the security order should be varied to allow the appeal to proceed
  3. 3 Whether funds held in respondents' counsel trust account satisfy the security requirement

Ratio Decidendi

Because there was at least a thread of merit to the appeal, sufficient funds from the agreed sale were available and held in respondents' counsel's trust account to secure the judgment and costs, and the interests of justice favored hearing the appeal on its merits, the Court declined to dismiss the appeal and varied the security order to require specified funds to be held in trust and expedited the hearing.

Court Disposition

Application to dismiss denied; application to vary security allowed; appeal to proceed and hearing expedited.

Orders

  • Order varied to require security held in respondents' counsel's trust account in the following amounts as of June 16, 2014: (1) principal judgment $302,000 with interest to June 16, 2014 being $316,170.64 (per diem $24.82); (2) Supreme Court costs as assessed with interest to June 16, 2014 being $83,151.86 (per diem...
  • The sum of $2,800 awarded for British Columbia Court of Appeal costs is payable forthwith to the respondents.