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Court File NoCI 04-01-40496 THE QUEENS BENCH Winnipeg Centre

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					                                                    Court File No.:CI 04-01-40496


                         THE QUEEN’S BENCH
                           Winnipeg Centre


BETWEEN:

                    ASTORIA INVESTMENTS CORP.

                                                                         plaintiff,

                                    - and -



                            FIONA SCURRAH

                                                                        defendant


_______________________________________________________________________


                             MOTION BRIEF

________________________________________________________________________



                                Darrin Davis
                              Regional Director

                      Per: Voula Karlaftis / Kirsty Elgert
                       Department of Justice (Canada)
                      Prairie Region, Winnipeg Office
                             301-310 Broadway
                            Winnipeg, Manitoba
                                  R3C 0S6

                                 File: 2-75260
                        voula.karlaftis@justice.gc.ca
                         kirsty.elgert@justice.gc.ca
                             Tel: (204) 984-8448
                             Fax: (204) 984-6488
                                         1

                                                      Court File No.:CI 04-01-40496


                            THE QUEEN’S BENCH
                              Winnipeg Centre


BETWEEN:

                     ASTORIA INVESTMENTS CORP.

                                                                           plaintiff,

                                     - and -



                                 FIONA SCURRAH

                                                                          defendant



                                     INDEX


                                                                            PAGE


1.         List of Documents to be relied upon                                2

2.         List of Statutory Authorities and Cases to be relied upon          2

3.         List of Points to be Argued                                        2

4.         Argument                                                           3



                                                                            TAB

5.         Draft Bill of Costs                                               4
                                              2


DOCUMENTS TO BE RELIED UPON

a)        The pleadings in Queen’s Bench Suit No. CI 04-01-40496; and

b)        The Affidavit of Dhara Drew, sworn September 28, 2005.



AUTHORITIES AND STATUTORY PROVISIONS TO BE RELIED UPON

1.    Queen’s Bench Rule 56.01(c)(d) (TAB 1)

      DeBono v. Smith et al. (1989), 62 Man. R. (2d) 98 (Q.B.) (TAB 2)

A Court may order security for costs where the plaintiff has failed to pay costs as ordered

in the same or another proceeding or if there is reason to believe that a corporate plaintiff

has insufficient assets to satisfy a judgment for costs.



2.     ABI Biotechnology Inc. v. Apotex Inc., [2000] M.J. No. 14 (C.A.) (TAB 3)

It must be established that the corporate plaintiff’s shareholders are unable to advance

funds to satisfy a judgment for security for costs.




POINTS TO BE ARGUED

a)        In the circumstances of this case, it is just for this Honourable Court to make

          an Order for security for costs against the plaintiff; and

b)        In the circumstances of this case, it is just for this Honourable Court to make

           an Order for security for costs against the shareholders of Astoria

           Investments Corp.
                                            3




ARGUMENT

STATEMENT OF FACTS



1.     The corporate plaintiff alleges that along with its indemnitors, it has suffered

irreparable damages and financial loss.

Statement of Claim, paragraph 17



2.     Mike Jurcevic, shareholder and representative of the corporate plaintiff, has failed

to appear in court on two previous motions. One hearing occurred on January 6th, 2005 in

front of Master Cooper, and the other hearing occurred on May 5th, 2005 in front of

Senior Master Lee.

Affidavit of Dhara Drew, sworn September 28, 2005 at paragraph 6



3.      Mike Jurcevic and Astoria Investment Corp. have several judgments registered

against them.

Affidavit of Dhara Drew, supra at paragraph 2



4.      To date, neither Mike Jurcevic nor Astoria Investment Corp. have made any

attempts to satisfy a number of judgments ordered against them. Further, the Orders for

costs, signed by Master Cooper on March 8th, 2005 and Senior Master Lee on May 5th,

2005, have not been paid.

Affidavit of Dhara Drew, supra at paragraphs 5 and 6
                                               4




SECURITY FOR COSTS

5.       On a motion for security for costs pursuant to Queen’s Bench Rule 56.01 (c),

(d), the Court may grant the order where the plaintiff has failed to pay previously ordered

costs or there is good reason to believe that insufficient assets will be available in

Manitoba to pay costs.

      Queen’s Bench Rule 56.01(c),(d) (TAB 1)



6.       Hanssen J. set out a comprehensive but not exhaustive list of factors that may be

considered when ordering security for costs, including whether there is reason to believe

the plaintiff might attempt to avoid paying a judgment for costs.

      DeBono v. Smith et al. (1989), 62 Man. R. (2d) 98 (Q.B.) (TAB 2)



7.        Making an order for security for costs against a corporate plaintiff without

assets will not have the effect of stifling the action if the shareholders have the means and

ability to fund the action. Therefore, the corporate plaintiff must not only demonstrate

that it has insufficient assets to post for security for costs, it must further establish that it

is wholly impecunious in that its shareholders are unable to advance funds to allow it to

post security for costs.

       ABI Biotechnology Inc. v. Apotex Inc., [2000] M.J. No. 14 (C.A.) (TAB 3)
                                              5

8.       The plaintiff has stated that it has suffered irreparable damages and financial

loss, which would indicate that the plaintiff would be unable to satisfy a judgment for

costs if unsuccessful at trial.



9.       The plaintiff has several outstanding judgments registered against it and its

shareholder and representative, Mike Jurcevic. There is an established pattern of neglect

and failure to satisfy judgments and therefore a strong indication that the plaintiff and

Mike Jurcevic will continue to affront the Court’s authority by ignoring judgment orders.



10.     The Courts have emphasized that it is undesirable to deprive a defendant of costs

when wealthy shareholders are in the background carrying on business and litigation

through a shell corporation. Therefore, in order for the Court to consider whether this

corporate plaintiff has suffered irreparable damages, financial loss, and is impecunious, it

must establish that it cannot raise security. Further, it must establish that its shareholders

cannot raise security. This should not be interpreted as lifting the corporate veil, but

rather preventing Mike Jurcevic and the other shareholders of Astoria Investment Corp.

from manipulating their positions, while continuing to advance this claim.



11.      If Astoria Investment Corp. can establish that it is unable to raise security for

costs, both Mike Jurcevic and MCM Holdings must further establish that they are unable

to raise the funds required.
                                               6

12.      It is difficult to estimate what the cost of this litigation will be and therefore, the

draft bill of costs that has been provided should be considered a minimum estimate for

costs incurred in this action.

Minimum Estimated Bill of Costs (TAB 4)



13.       Based on the minimum estimated bill of costs, Astoria Investment Corp. and/or

its shareholders, Mike Jurcevic and MCM Holdings, will need to post $13,500 to satisfy

an Order for security for costs in this matter.



ORDER SOUGHT



14.      It is respectfully submitted that, in the circumstances of this case, it is just for

this Honourable Court to make an Order for:

            1. Security for costs as against the plaintiff; and

            2. Security for costs as against the shareholders of Astoria Investment Corp.



ALL OF WHICH IS RESPECTFULLY SUBMITTED.



October 25, 2005
                                                        Darrin Davis
                                                        Regional Director
                                                        _________________________
                                                        Per: Voula Karlaftis / Kirsty Elgert
                                                        Department of Justice (Canada)
                                                        Prairie Region, Winnipeg Office
                                                        301-310 Broadway
                                                        Winnipeg, Manitoba
                                                        R3C 0S6
                                     7




                                         voula.karlaftis@justice.gc.ca
                                         kirsty.elgert@justice.gc.ca
                                         Telephone: (204) 984-8448
                                         Facsimile: (204) 984-6488

                                         Solicitor for Fiona Scurrah



TO:       Astoria Investment Corp.
          Box 13, Comp 3
          East Braintree, MB
          R0E 0L0



AND TO:   Mike Jurcevic
          2 Parrish Bay
          St. Andrews, MB
          R1A 3B2


AND TO:   MCM Holdings
          2 Parrish Bay
          St. Andrews, MB
          R1A 3B2

				
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