Case Studies, Spinnaker West: Kagami offers to sell her leaky rotten condo

MEMO
September 27, 2003


Delivered by hand and email.

TO:
Strata Council, LMS 0497, Spinnaker West
The Owners, LMS 0497, Spinnaker West
Ann Hedley, Realacorp Management Ltd.

FROM:

Mary Kagami, Owner, SL 3, LMS 0497
Suite 3, Spinnaker West
2367 Laurel Street, Vancouver, B.C.

RE: LEAKS AND ROT REPAIRS AT SPINNAKER WEST

Once again, on September 24, 2003, the owners of Strata Plan LMS 0497, Spinnaker West, refused to authorize the necessary repairs to my leaky rotten condo, Strata Lot 3, in accordance with the Strata Property Act and Homeowner Protection Office Regulations.

I am not prepared to sign the document assigning my rights regarding litigation to the The Owners, Strata Plan LMS 0497.

I am not prepared to consent to distributing any recovery or benefits to The Owners in accordance with their unit entitlement.

I can not proceed based on vague, verbal assurances regarding so-called "negotiations" with the Owners of Strata Lot 1, the Cosmotologists' Association, regarding possible separation into sections in exchange for some unknown sum of money that would not be designated as money for repairs to the building envelope of the residential portion of Strata Plan LMS 0497.

However, I am prepared to settle all my outstanding matters regarding Strata Plan LMS 0497 in exchange for three hundred and twenty-five thousand dollars ($325,000.00).

In other words, for $325,000.00 the other owners of Strata Plan LMS 0497 can purchase Strata Lot 3 from me, as is.

The owners can then negotiate, repair the building, or re-develop the building, or continue to let it leak and rot, as they wish.

This offer is specific to the owners of Strata Plan LMS 0497.

This offer expires at 12:00 midnight the 29th of September 2003.

(Signed)

Mary Kagami

Duncan: Prime suspect in Air India bombing, Ripudaman Singh Malik, seeks legal aid; owns 57 leaky rotten condos with million dollar repair bill; evidence discloses vast sums of money move in and out of the many business and personal accounts

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

HMTQ v. Malik,

 

2003 BCSC 1439

Date: 20030919

Docket: CC010287

Registry: Vancouver

Between:

Her Majesty the Queen

 

And

Ripudaman Singh Malik

 

 

Applicant

 

 

Before: The Honourable Madam Justice Stromberg-Stein

 

Reasons for Judgment

 

(IN CHAMBERS)

 

Counsel for the Crown:

J. Waddell, Q.C.

and S. Martorana

 

Counsel for the Applicant:

M.K. Woodall

Counsel for Ms. Raminder K. Malik:

 

A.I. Nathanson

 

Date and Place of Hearing:

August 5, 6, 7, 8, 11, 12, 13, 14 and September 2, 3, 4 and 5, 2003

 

Vancouver, B.C.

 

INTRODUCTION

 

[1]            Ripudaman Singh Malik applies for Charter relief by way of a Rowbotham order in aid of his constitutional right to a fair trial.  The Attorney General concedes Mr. Malik cannot receive a fair trial without the assistance of counsel. 

[2]            The issue is whether Mr. Malik has the means to pay for his defence or to make a contribution.  To date, pursuant to an interim funding agreement, the Attorney General has paid Mr. Malik’s 11 member defence team $3,615,572.33.  It is estimated the cost of counsel to the end of trial, exclusive of several hundred thousands of dollars of computer costs, will be $2,715,360.

JURISDICTION

 

[3]            With the agreement of the trial judge, the Associate Chief Justice assigned me, a judge of the trial court, to hear this Rowbotham application made during the course of the trial.  As a practical matter, this unusual procedure was necessary to preserve the appearance and perception of fairness and the integrity of the trial process because Mr. Malik testified on this application.  The trial judge, sitting alone without a jury in a lengthy and complex trial, must remain unaffected by any findings of credibility.  All counsel agree I have jurisdiction to deal with this Rowbotham application with one proviso: counsel say the composition and cost of the defence team, previously determined by the trial judge as necessary to a fair trial, is a matter which remains within his exclusive jurisdiction.  I add that I am not aware of any authority which supports my having jurisdiction to grant a stay of proceedings of another judge’s trial.

BACKGROUND

 

[4]            In October 2000, Mr. Malik was arrested and charged with multiple counts of first degree murder, and he is now being tried in what has become known as the Air India trial.  In 1985 a mid-air explosion downed an Air India flight killing 329 people.  A lengthy public investigation followed this notorious terrorist act.  From the outset Mr. Malik knew he was a prime suspect.  In 1997, he consulted a lawyer.

[5]            At his bail hearing in December 2000, Mr. Malik presented evidence that he and his wife were equal business partners in an import clothing business and various real estate holdings, including an 88 room hotel, which assets had a net worth of approximately $12 million.  The December 2000 Personal Net Worth Statement filed at the bail hearing revealed assets of $18,680,763.85, joint debts of $7,032,324.00, for a total net worth of $11,648,439.85. 

[6]            In November 2001, Mr. Malik approached the Attorney General to fund his defence as his trial was imminent and trial preparation was necessary.  He asserted that he had assets, although those assets were not in the form of cash, and liquidating them for his legal fees would require time.  In February 2002, negotiations between counsel for Mr. Malik and the Attorney General led to an interim funding agreement (“the Defence Counsel Agreement”).  This agreement acknowledged that Mr. Malik had assets to contribute to his defence, which assets would be liquidated or funds from those assets would otherwise be obtained and applied to his legal fees.  It was simply a matter of ascertaining the exact amount of Mr. Malik’s interest in the assets and canvassing options to maximize value.  

[7]            The Defence Counsel Agreement was entered into so funding could commence immediately.  The Attorney General advanced funds in good faith based on Mr. Malik’s representations. 

[8]            The Attorney General never agreed that Mr. Malik was indigent and continually sought more information to determine Mr. Malik’s true financial worth.  There was no question that Mr. Malik had an obligation to contribute to his legal fees; it was agreed that he would discharge this obligation by either paying or transferring his interest in all of his assets to the Province, or by liquidating his assets and applying the proceeds to his legal costs. 

[9]            The Attorney General was concerned about the delay in realizing funds from Mr. Malik’s assets and sought to formalize Mr. Malik’s indebtedness with security for that debt.

[10]        Subsequently, Mr. Malik claimed he was insolvent because his assets were insufficient to discharge his liabilities.  Mr. Malik said his unsecured creditors, all family members, took priority over his obligation to contribute to his legal fees.  He claimed his net worth was zero.  Because he was insolvent Mr. Malik claimed he had no duty to contribute to his legal fees; he was entitled to keep his interest in his assets with a gross value of several million dollars which he jointly owned with his wife; and he was entitled to continue to receive government funding with no requirement to contribute or repay those funds.

[11]        The Attorney General was concerned that Mr. Malik’s position was contrary to his obligations under Rowbotham principles and did not reflect his contractual obligations under the Defence Counsel Agreement to transfer all of his right, title and interest in and to all of his property, real or personal and to cooperate fully in the identification and transfer of that property and the assertion in favour of the Attorney General of those rights, title and interest.  Further, the Attorney General was concerned that since the Defence Counsel Agreement was signed, numerous transactions had taken place regarding Mr. Malik’s assets, including legal action against Mr. Malik by one brother.  The Attorney General moved to protect his interest by terminating the Defence Counsel Agreement.

[12]        Throughout all negotiations and meetings, the Attorney General was proceeding on the basis that Mr. Malik’s interest in his assets was net of secured liabilities he claimed were owing.  In September 2002, Mr. Malik claimed that his interest in his assets were net of all of his liabilities, including unsecured debts he asserted were owing to his wife, brothers and children.  He argued that after deduction of these liabilities he was insolvent.  During that time, his counsel, Mr. Woodall, provided an Indemnity Agreement executed by Mr. Malik reflecting this position.  The Attorney General disagreed with the proposed form of indemnity.  Discussions continued between counsel.  In a letter dated January 20, 2003, the Province gave notice that it required a general indemnity within 14 days.  Otherwise, the letter would serve as formal notice under the Defence Counsel Agreement that funding would be terminated effective April 30, 2003.  In a letter dated January 28, 2003, Mr. Woodall advised that Mr. Malik would not execute the indemnity required unless a court determined that it was a precondition to Rowbotham funding.  If the court held that it was a precondition, then Mr. Malik would sign it. 

[13]        In April 2003, the Attorney General abandoned his position that Mr. Malik provide an indemnity.  Instead, he sought to secure his position by way of security.  No agreement was reached.  There was an appearance before Mr. Justice Tysoe on May 14, 2003.  Mr. Justice Tysoe adjourned generally the Attorney General’s application with respect to security Mr. Malik must provide as a condition to the continued funding of his defence.

[14]        The matter next proceeded before me as a Rowbotham application.  

[15]        Mr. Malik has been denied legal aid and requires the assistance of counsel to receive a fair trial.

ISSUE

[16]        The issue is whether Mr. Malik has the means to pay or contribute to his defence.  Three questions are raised but only the first need be answered.

1.    Has Mr. Malik fulfilled the factual and evidentiary onus to establish indigency as defined in the Rowbotham jurisprudence; or has he disentitled himself by his actions?

2.    Alternatively, what amount, if any, is Mr. Malik required to contribute to his legal fees?

3.    If a contribution is required, are security documents a reasonable pre-requisite for any further funding?

MR. MALIK’S POSITION

 

[17]        Mr. Malik agrees he should contribute to legal fees the full value of his net worth.  His position is that his net worth is the value of his share of the assets, minus bona fide liabilities, minus the costs and taxes associated with liquidation.  Mr. Malik claims he has already paid approximately $650,000 in legal fees.  He argues the financial evidence shows he has suffered business reversals, he has no income or assets to contribute further to legal fees, and his net worth is less than zero.

MRS. MALIK’S POSITION

 

[18]        Mrs. Malik is an interested party in this application because the Attorney General argues her financial position is relevant.  Mrs. Malik argues it is not relevant.

[19]        Despite the fact that their business affairs are intertwined and they have been equal business partners throughout their 29 year marriage, Mrs. Malik argues that any contribution by Mr. Malik should be limited to his net share of their joint assets.

[20]        Mrs. Malik submits he is responsible for one half the amount outstanding on a mortgage registered against the home in her name alone, and that this debt is secured by an equitable charge over Mr. Malik’s interest in the hotel.  

RESULT

 

[21]        I agree with the Attorney General that Mr. Malik’s application should be dismissed.  As the discussion will show, Mr. Malik has failed to meet the factual and evidentiary onus to establish indigency as defined in the Rowbotham jurisprudence.  Even if his financial circumstances could be classified as difficult, they are not extraordinary.  Furthermore, he has not been prudent, has failed to prioritize legal fees, and has submitted erroneous, contradictory and unreliable evidence.  The evidence establishes a collective effort by Mr. Malik and the Malik family members to diminish the value of his estate.  If Mr. Malik is indeed indigent, it is because he has made himself so and he is not able to succeed on this application.

[More: 2003bcsc1439.htm ]

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Case Studies, Spinnaker West: Letter from Mary Kagami

In this letter, Mary Kagami expresses her growing frustration and anger over the failure of the Strata Corporation to fix the leaks and rot at Spinnaker West. Mrs. Kagami spends the winter months in Tokyo and for several years she would leave with the expectation and belief that the building would be properly repaired. However, upon her return, she would find that no real progress had been made.

She addresses the issue again in this letter of September 27, 2003.


September 14, 2003
Delivered by hand and email.

TO:

Strata Council, LMS 0497, Spinnaker West
The Owners, LMS 0497, Spinnaker West
Ann Hedley, Realacorp Management Ltd.

FROM:

Mary Kagami, Owner, SL 3, LMS 0497
Suite 3, Spinnaker West
2368 Laurel Street, Vancouver, B.C.

RE: LEAKS AND ROT REPAIRS AT SPINNAKER WEST
SGM AGENDA SEPTEMBER 24, 2003


I want to register my shock and disappointment, once again.

The proposed SGM Agenda distributed Friday does not present a Special Resolution to fix the building envelope.

It doesn’t even have a resolution to proceed with the latest amended proposal from Marcus Dell, M.A.Sc., P.Eng., B.E.P., RDH Building Engineering Ltd.

This building has got to be FIXED! No more of these “informal”, “annual”, “special”, “informational” and “waterproofing committee” meetings, year after year, after year …. It’s a charade!

It would be helpful to review the 15-page letter from Dr. James Balderson dated October 29, 2002, which details the miserable history of my discontents with leaks and rot at Spinnaker West.

Now another year has passed. ENOUGH!!!

Once again, I will return from Japan to face yet another year of meetings and delays with no action on the horizon. This cannot continue. It’s hurting me financially, emotionally and physically.

It’s absolutely clear to me that I will not entertain any further proposal to demolish and redevelop Spinnaker West. I am not in the real estate development business.

I will not put up with any further delay to the restoration process. My home must be fixed in accordance with the Strata Property Act and Homeowner Protection Office Regulations.

In accordance with Ann Hedley’s invitation for further Agenda items for the SGM, please include a ¾ vote Resolution for raising funds by “Special Levy” for the costs of a complete building envelope remediation with specifications to be developed by RDH, like the sample provided at the “informational” meeting on Tuesday, September 02, 2003.

By not moving ahead with the building envelope restoration process, the Strata Council and some owners are forcing me to consider other measures to get my leaky condo fixed NOW.

(Signed)


Mary Kagami

Chancellor Court (Port Coquitlam): Court approves adding Redekop, Fortress Financial and Premier Pacific Developments as defendants

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The Owners, Strata Plan LMS 989 v. Port Coquitlam (City of), et al ,

 

2003 BCSC 1398

Date: 20030911

Docket: SO10156

Registry: Vancouver

Between:

The Owners, Strata Plan LMS 989

Plaintiff

And

The City of Port Coquitlam, 426256 B.C. Ltd.,

Reddale Enterprises Ltd., David Mark Tyrell, Shane Friars,
Lang Structural Engineering Inc., R.K. Roofing Ltd., Westcoast Stucco Inc.,
Phoenix Commercial (1986) Ltd., Stucco Doctor Corporation, Stucco Doctor Plus Ltd.,
Wismer & Mathieson Projects Ltd., CSA Building Sciences Western Ltd.,
Pro-Tech Stucco Corporation, Ronald Bennewith and Leslie Bennewith
Carrying on Business as Stucco Doctor

Defendants

 

 

 

Before: The Honourable Madam Justice Ballance

Reasons for Judgment

Counsel for the Plaintiff:

J.L. Conkie and

J.P. Millbank

Counsel for the Proposed Defendants: Premier Pacific Developments Ltd. and John Redekop (dba John Redekop Construction):

 

D.J. Letkemann

Date and Place of Hearing:

June 6, 2003

 

Vancouver, B.C.

 

[1]            The plaintiffs, who are the owners of Strata Plan LMS 989 (the “Owners”), have brought this application to add John Redekop dba John Redekop Construction (“Redekop”), Fortress Financial Corporation and Premier Pacific Developments Ltd. (“Premier”) (collectively, the “Proposed Defendants”) as defendants to the within action.  They also seek leave to amend their Statement of Claim to incorporate the Proposed Defendants as parties and to set out the allegations against them.

BACKGROUND

 

[2]            Chancellor Court is a residential condominium development located in Port Coquitlam, British Columbia.  Its construction was completed in late 1993 or early 1994.  As is the case with many similar developments in the lower mainland, Chancellor Court is embroiled in what is commonly referred to as “leaky condo” litigation against several parties allegedly involved in its construction including the City of Port Coquitlam, roofing and stucco firms, architects, engineers and remediators.

[3]            The Owners claim that significant water ingress problems began almost immediately upon the occupation of their units, resulting in rot through the exterior building envelope and the interior structure.  The Owners made numerous attempts to address the water ingress problems over the ensuing years.  Ultimately in 2000, they hired a building envelope remediation firm, which subsequently determined that Chancellor Court had systematic envelope problems requiring comprehensive remediation.

[4]            The amended Statement of Claim reveals several focal points for the Owners’ complaints concerning the construction of Chancellor Court.  These include, but are not limited to, inadequate exterior cladding, inadequate drainage capacity, failure to install watertight joint seals, seam connections and caulking and improperly installed windows and waterproof membranes.  The thrust of the claim against the defendants collectively is that they failed to exercise reasonable skill, care or diligence with regard to the construction, inspection and design of Chancellor Court.

[5]            In this application, the Owners contend that the Proposed Defendants ought to be added as parties to the action by virtue of their independent involvement in a joint venture or partnership to develop Chancellor Court, facilitated through an existing defendant, 426256 B.C. Ltd., which purportedly acted as a bare trustee.

[6]            Redekop and Premier oppose the application.  They argue that not only is the claim against them statute barred, but that there has also been an unexplained and unjustified delay between the plaintiffs’ discovery of the identity of the Proposed Defendants and the bringing of this application.  They argue that it would not be just and convenient to add them as parties.

ANALYSIS

 

[7]            An application to add a defendant is governed by Rule 15(5)(a)(iii) of the Rules of Court.  It provides:

15 (5) (a)  At any stage of a proceeding, the court on application by any person may …

(iii) order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connected

(A)   with any relief claimed in the proceeding, or

(B)   with the subject matter of the proceeding,

which in the opinion of the court it would be just and convenient to determine as between the person and that party.

[8]            The power conferred on the court is discretionary and is to be exercised judicially.

[9]            In considering an application under Rule 15(5)(a)(iii), the Court must address the following two criteria.  First, the Court must find that there exists a question or issue between the party sought to be added and an existing party which relates to the relief, remedy or subject matter of the action.  Second, if the Court finds that such an interrelationship exists, it must next decide whether it would be just and convenient to determine that question or issue in the existing proceeding.  (The Owners, Strata Plan LMS 837 v. Abbotsford (City), [2003] B.C.J. No. 889, 2003 BCSC 590; Lawrence Construction Ltd. v. Fong (2001), 18 C.P.C. (5th) 377. 

[10]        To satisfy the interrelationship requirement, the Owners need only show that there may exist an issue or question between an existing party and the Proposed Defendants; they do not have to demonstrate a likelihood that the allegations can be proven against the Proposed Defendants.  The threshold is a low one.  The court need only be satisfied that the claim is not entirely frivolous.  (MacMillan Bloedel Limited et al. v. Binstead et al. (1981), 58 B.C.L.R. 173 (C.A.)).

[11]        In their Amended Statement of Claim, the Owners allege that the Proposed Defendants were participants in a joint venture relationship with the other named defendants in relation to the design and construction of Chancellor Court.  They contend that the core elements required to constitute a joint venture relationship, as enumerated by the Court of Appeal in Canlan Investment Corp. v. Gettling (1997), 37 B.C.L.R. (3d) 140 (C.A.), are present in the case at bar.  The Owners allege breach of contract, negligence and failure to warn against the Proposed Defendants.  These causes of action are well-founded in law.

[12]        I am readily satisfied on this mere threshold issue that there exists a possible issue to be tried between existing parties and the Proposed Defendants, which relates to the same subject matter and seeks similar relief in damages.

[13]        The applicable limitation period is six years (section 3(5) of the Limitation Act, R.S.B.C. 1996, c. 266, and see Strata Plan NW 3341 v. Delta (Corp.) (2002), 5 B.C.L.R. (4th) 250 (C.A.).

[14]        Redekop and Premier point out that the Owners were aware of the water ingress upon taking occupancy of the strata units in late 1993 or early 1994.  They adopt the extreme position that the six year limitation period was triggered at that time and therefore the limitation period expired in January, 2000, or perhaps even earlier in October, 1999.  In this context, I note that the Owners did not know the extent and consequences of the water ingress until the receipt of the building remediation firm’s report on September 29, 2000.  In any event, for the purposes of this application, I am concerned with the limitation period as it relates to the Proposed Defendants.  In my view, that period is impacted by the application of the postponement provisions of the Limitation Act which provide as follows:

 

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