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CIVIL PROCEDURE - Appeals - Fresh evidence - Powers of appellate court

Friday, April 20, 2018 @ 8:43 AM  


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Application by the appellants, Red Branch Investments Limited (Red Branch) and Wright, to adduce fresh evidence and reopen their appeal. The decision under appeal found that half of Red Branch's royalty interest in an undeveloped potash mine in Thailand belonged to the respondent, Long. Wright was one of three directors of Crew Capital. Each of the directors purchased a one-third share of the royalty interest, and each arranged to transfer his share to a nominee. Wright chose his friend Long. Long paid for the interest by a promissory note, later paid out with funds provided by Wright. Long also signed an undated agreement to transfer the royalty interest to a purchaser, unnamed in the agreement. Wright kept this agreement in a safe in his home. In June 2010, Wright asked Long to transfer the interest to Red Branch. He provided Long with a written agreement dated September 1, 2009, transferring the royalty interest for $1. In June 2011, Wright and Long had a falling out, after which Long asked Red Branch to confirm it held half the royalty in trust for him. Red Branch refused to do so, leading to litigation. The decision turned upon assessment of the credibility and reliability of the parties and certain witnesses. The trial judge accepted Long's evidence that Wright’s share in the royalty was given to Long in consideration for holding the royalty, which was, at all times, intended to be shared between the two men. The Court of Appeal affirmed the decision. In the course of settling costs, the respondents disclosed portions of their lawyer’s file. The appellants argued that the fresh evidence justified reopening the appeal. They claimed that the fresh evidence established that the testimony of Long and another witness was false and misleading.

HELD: Application dismissed. Although the Court of Appeal had jurisdiction to re-open the appeal, hear fresh evidence in support of an allegation that a judgment was improperly obtained, and set aside a judgment on those grounds, it was inappropriate to exercise that jurisdiction where the falsity of the impugned evidence was in issue. The trial court retained jurisdiction to hear and determine a challenge to an entered judgment founded upon an allegation of fraud or perjury. As a court of first instance, the trial court was in a privileged position with respect to the determination of such factual disputes. The Court of Appeal’s refusal of the relief sought by the appellants did not pose an impediment to a future action in the British Columbia Supreme Court to set aside the judgment below as vitiated by fraud.

Long v. Red Branch Investments Ltd., [2018] B.C.J. No. 555, British Columbia Court of Appeal, D.C. Harris, P.M. Willcock and L. Fenlon JJ.A. Supplementary judgment: March 28, 2018. Digest No. TLD-April162008010