



COURT OF APPEAL FOR ONTARIO

CITATION: Fung v. Decca Homes Limited, 2019 ONCA 848

DATE: 20191025

DOCKET: C66680

Feldman, Fairburn and Jamal JJ.A.

BETWEEN

Gary Fung

Applicant (Respondent)

and

Decca Homes Limited and Javad Akbari Balderlou
    a.k.a. Javad Akbari-Balderlou a.k.a. Javad Akbari

Respondents (Appellants)

Tariq Muinuddin, for the appellants

David Schatzker, for the respondent

Heard and released orally: October 22, 2019

On appeal from the order of Justice William S. Chalmers
    of the Superior Court of Justice, dated February 28, 2019.

REASONS FOR DECISION

[1]

The respondent overpaid the appellants for work done on a construction
    project. The appellants agreed. Accordingly, the appellants wrote the
    respondent a $150,000 cheque, the amount of the overpayment, but asked that the
    respondent not cash the cheque.

[2]

The parties later entered into a demand promissory note for that same
    amount. An irrevocable direction was given to a law firm to pay that amount to
    the respondent from the proceeds of other properties once sold. The appellants
    admitted that the respondents overpayment had been directed into those properties.

[3]

The respondent believed that the appellants had abandoned his project when,
    among other things, the appellants failed to respond to a series of the
    respondents emails. The respondent made a written demand on the note. When it
    was not paid, the respondent brought an application for payment. That
    application was granted.

[4]

The appellants say that the application judge erred by failing to take
    into account an oral agreement that is said to have modified the written
    promissory note. That oral agreement is said to have been made at the same time
    that the note was entered into.

[5]

We see no error in the application judges application of the parole
    evidence rule in the circumstances of this case:
Hawrish v. Bank of
    Montreal
,
[1969] S.C.R. 515,

at p. 520. Even if there was a
    collateral oral agreement, something that is disputed by the respondent, that
    oral agreement could not contradict the written agreement. Accordingly, we agree
    with the application judge that the written agreement prevails and that the
    respondent could enforce the note. It was contingent on nothing.

[6]

The appellants also raise for the first time in oral submissions the
    absence of consideration for the personal indemnity. We do not accept this argument.
    The indemnity specifically states that it was given for consideration and made
    under seal.

[7]

The appeal is dismissed with costs to the respondent in the amount of
    $5,000, inclusive of disbursements and HST.

K.
    Feldman J.A.

Fairburn
    J.A.

M. Jamal
    J.A.


