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Trial reasons on a private placement agreement held that 20% yield accrued on $1.25 million from December 1, 2020, with payments credited first to yield.
On the evidence and applying the Sattva approach, the guarantee was objectively a continuing guarantee covering all advances to TEC; the trial judge's interpretation and factual findings were open to her and not palpably or overridingly erroneous, therefore the appeal is dismissed and the judgment for the respondent stands.
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The court held the defendants owed $1 million under a SPA put right and guarantee, rejecting their argument that implied best-efforts terms excused payment.
The Court of Appeal dismissed Mr. Pavlov’s appeal from summary judgment enforcing a personal guarantee after a missed VTB interest payment triggered acceleration.
The Court dismissed the appeal: it upheld the applications judge’s determination that the contractual rate of 18% applied to the Cheeke mortgage and, on the surplus issue, concluded the applications judge and this Court had previously determined that Patrick Street had not established any amount owing under mortgage 759678 and that estoppel doctrines (issue estoppel, cause of action estoppel) and abuse of process by relitigation barred Patrick Street from relitigating entitlement to the $4,000,000; accordingly the surplus (less Cheeke) was payable to 11368 and costs were awarded to 11368 on C…
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Court found there was a real possibility the Bank had relevant undisclosed documents and that the Bank did not rebut the presumption of full disclosure; therefore the Court ordered targeted disclosure of (i) internal Bank communications regarding administration of the Comvest/BSL credit facilities and (ii) communications between the Bank and the companies, the companies' counsel, accountant and the defendant Caryi, and awarded costs of $500 inclusive.
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The court held that a $97,000 guarantee was not a “further advance” under s. 28 of the Property Law Act and refused VanCity priority over Reliable Mortgages.
The Court upheld the motion judge: the Second Guarantee is a continuing guarantee that covers liabilities incurred "in connection with" the Second Loan Agreement; This Loan merely amended and restated the existing indebtedness (no new funds, accrued interest carried forward) and paragraph 14 of the Second Guarantee permitted such variation without guarantors' consent provided the principal was not increased, therefore guarantors remained liable under the guarantee.
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The mortgage agreement and schedule modified the lender's standard terms by limiting the guarantor's obligations to the 12‑month period set out in the mortgage agreement; the motion judge's interpretation was reasonable and not palpably and overridingly erroneous, so the guarantor was not liable for subsequent extensions and the appeal was dismissed.
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The Court of Appeal set aside a default judgment against guarantors because the pleaded claim was against the wrong entity, and it upheld special costs.
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