



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Modonese v. Delac,









2012 BCCA 21




Date: 20120113

Docket: CA038832

Between:

Helena Modonese

Respondent

(Plaintiff)

And

Marko Delac,
Executor of the Will of Regina Delac,
The Estate of Regina Delac, and Marko Delac

Appellants

(Defendants)

Corrected Judgment:
Counsels name was corrected on

January
24, 2012




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice K. Smith





The Honourable Mr. Justice Tysoe




On appeal from the
Supreme Court of British Columbia, January 25, 2011
(
Modonese v. Delac
, 2011 BCSC 82, Chilliwack Registry S16867)






Counsel for the Appellants:



L.F. Tungohan





Counsel for the Respondent:



D. MacAdam, Q.C.

J. Meyer





Place and Date of Hearing:



Vancouver, British
  Columbia

December 2, 2011





Written Submissions Received:



December
  16, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2012









Written Reasons by:





The Honourable Madam Justice Newbury





Concurred in by:





The Honourable Mr. Justice K. Smith

The Honourable Mr. Justice Tysoe








Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The division that heard this appeal on December 2, 2011 has had an
opportunity to review counsels submissions, both received December 16, 2011.  Counsel
had been invited to make submissions regarding costs.

[2]

The submission made by counsel for the appellant did not deal with costs
but seeks to re-open the case on the basis of interventions made by the trial
judge during trial.  It is said the judge ignored evidence presented
by the appellant, that he misconceived the evidence, and did not conduct a
meticulous examination of facts.  At the hearing of this appeal, counsel
had not provided this court with a transcript of the trial in full and was
asked to provide a list of pages where he alleged the judge had stopped him
from conducting his examination of witnesses.  However, after having heard
the appellants argument, this court determined that it was able to decide the
appeal without receiving the pages and without the necessity of calling on
counsel for the respondent.

[3]

We remain of the view that the trial judges conduct of the trial does
not support the grounds of appeal or give rise to an injustice.  We
therefore decline to re-open the appeal.

[4]

We note Mr. MacAdams argument that having failed to make submissions
regarding costs by the time indicated, counsel for the appellant should be
taken to have forfeited the opportunity to make such submissions.

[5]

We are of the view that in the circumstances, Mr. Tungohan should be
given until January 23, 2012 to make his submission regarding costs, failing
which the Court shall inform counsel as to its order.

The Honourable Madam Justice Newbury

I Agree:

The
Honourable Mr. Justice K. Smith

I Agree:

The Honourable Mr. Justice
Tysoe


