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The court refused to set aside prejudgment garnishing orders or release paid funds, finding no material non-disclosure and a real risk of dry judgment.
The motion judge did not actually find there was no settlement but concluded he could not determine on the affidavit record whether a binding settlement existed and therefore dismissed the Rule 49.09 motion; because he did not make a definitive finding that no settlement existed the order is interlocutory and the Court of Appeal lacks jurisdiction to hear the appeal, so appeal is quashed.
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The court held that Campney & Murphy failed to prove Hollyburn Properties Ltd. was their client, so the company was not liable for the legal accounts.
The adjudicator refused to apply Defendant's asserted set-offs (Napoleon Project and Hockley Valley Resort) because they were not pleaded as a counterclaim and Results lacked notice; the correspondence did not clearly establish an accord and satisfaction extinguishing the claims. Therefore the Court entered judgment for the Claimant for invoice #1183 in the amount of $3,244.89.
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The appeal was dismissed because the motion judge correctly found the debtor was insolvent and the statement of affairs contained no substantial errors; the procedural defect in the jurat did not justify annulment because annulling would cause injustice to creditors and the judge's factual findings are entitled to deference under s.181(1) of the BIA.
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