Summary

40553

Daniel F. O'Connor v. Ezio Giancristofaro, et al.

(Quebec) (Civil) (By Leave)

Keywords

Judgments and orders — Execution — Paulian Action — Successful oppression claim granted in favour of creditor in 2018 — Creditor awarded damages in lieu of transfer of shares as originally claimed — Creditor alleging fraudulent transfer of immovable by debtor in 2010 to shield asset from eventual seizure — Courts below dismissing claim on basis of relief granted being monetary in nature and on basis of no intent to defraud — Whether application for leave to appeal raises an issue of public importance.

Summary

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After a 12 year legal battle, the applicant, Mr. O’Connor, was partly successful at trial in an oppression application awarding him damages in the amount of $350,000 against the respondent Ms. Malobabic. Unable to execute the oppression judgment, he instituted a Paulian Action against Ms. Malobabic and her spouse, the respondent Ezio Giancristofaro. Since 2010, Mr. Giancristofaro is the full owner of an immovable property; though initially a part owner, Ms. Malobabic transferred her 50% share of the immovable to him. A successful Paulian Action requires the showing of injury sustained by a creditor through the juridical act of a debtor in fraud of the creditor’s rights. Mr. O’Connor alleges that Ms. Malobabic’s transfer in 2010 was effected with an intent to defraud him — that is, to render herself insolvent and to isolate her sole asset from her creditors. The courts below disagreed, and dismissed Mr. O’Connor’s claim.

Lower Court Rulings

May 31, 2021
Superior Court of Quebec

2021 QCCS 2168, 500-11-056049-196
Paulian Action dismissed
November 11, 2022
Court of Appeal of Quebec (Montréal)

2022 QCCA 1544, 500-09-029576-212
Appeal dismissed