Centum Above All Financial Inc. et al. Date:, 2013 MBCA 79

Citation: Centum Above All Financial Inc. et al. Date: 20130827 v. Kharazi, 2013 MBCA 79 Docket: AI 13-30-07958 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : CENTUM ABOVE ALL FINANCIAL INC., ) K. Kharazi and NASEER CHAUDHRY o/a ) on his own behalf CENTUM ABOVE ALL FINANCIAL INC. ) ) I. Vakurova (Claimants) (Appellants) Respondents ) for the Respondent ) - and - ) ) Chambers motion heard: ) August 15, 2013 KHOSROV KHARAZI ) ) Decision pronounced: (Defendants) (Respondent) Applicant ) August 27, 2013 MARC M. MONNIN J.A. [ 1 ] The applicant, Khosrov Kharazi (Mr.

Kharazi), seeks leave to appeal the decision of a judge of the Court of Queen’s Bench sitting as a small claims appeals judge (the trial judge) under The Court of Queen’s Bench Small Claims Practices Act , C.C.S.M., c. C285 (the Act ). After a trial de novo under the Act , the trial judge gave judgment for the respondents in the amount of $4,700 consisting of $1,700 for the repayment of a personal loan from one of the respondents, Naseer Chaudhry (Mr. Chaudhry), to Mr. Kharazi and $3,000 as compensation to the other respondent, Centum Above All Financial Inc. (Centum), for Mr.

Chaudhry’s work in arranging financing for Mr. Kharazi to purchase a building. [ 2 ] The facts, as found by the trial judge, are that Mr. Chaudhry works as a mortgage broker arranging financing for clients. He assists in getting documents signed and sending these documents to potential lenders, but other aspects of the purchases are handled by realtors and lawyers. [ 3 ] In this case, Mr. Chaudhry obtained financing through a credit union for Mr. Kharazi’s purchase of a small storefront with a residential apartment on Corydon Avenue, in the City of Winnipeg.

The financing required both a mortgage on the property, and also a residential mortgage on Mr. Kharazi’s home. The credit union provided a commitment to lend money in the standard form set out in a commitment letter which was reviewed by Mr. Chaudhry with Mr. Kharazi. [ 4 ] Mr. Chaudhry testified that he discussed with Mr. Kharazi several times about a 1.5 per cent fee based on the amount of the loan arranged. [ 5 ] Prior to the completion of the transaction, Mr. Kharazi changed lawyers and immediately prior to the transaction closing, Mr. Kharazi became aware that he was short of money to close the transaction.

According to Mr. Chaudhry’s testimony, Mr. Kharazi called him to the effect that he was unable to come up with the new funds needed to complete the transaction, so Mr. Chaudhry arranged a line of credit for Mr. Kharazi as well as a personal loan of $1,700. [ 6 ] Mr. Kharazi signed an order to pay for a $3,000 fee to Centum and the $1,700 loan for Mr. Chaudhry. [ 7 ] In his reasons for judgment, the trial judge stated the following conclusions: In terms of my analysis, having reviewed the evidence, I find that Mr. Kharazi borrowed $1,700 from Mr. Chaudhry and agreed to pay Centum a fee of $3,000 for Mr.

Chaudhry’s work in arranging financing with the credit union. I make this finding because of Mr. Chaudhry’s evidence that he loaned this money to Mr. Kharazi and that $3,000 was the negotiated-upon fee.

I also make this finding because Mr. Kharazi testified that he accepted these terms. These terms are evidenced in the order to pay that was signed by Mr. Kharazi. While Mr. Kharazi’s evidence was to the effect that he was pressured into agreeing to these terms, I am not satisfied that it was undue pressure from Mr. Chaudhry that led to Mr. Kharazi agreeing to the $1,700 loan and the fee. I accept Mr. Chaudhry’s evidence that his role as a mortgage broker was limited to arranging the financing amount. This financing was ultimately provided. No credible evidence was provided to contradict Mr.

Chaudhry’s evidence that his role was limited to arranging the financing. While Mr. Kharazi’s argument was that more was required from Mr. Chaudhry, Mr. Kharazi did not provide any evidence, expert or otherwise, to indicate that Mr. Chaudhry’s role was required to be something more. [ 8 ] At the hearing of this application for leave, Mr.

Kharazi, through a two-page written factum and by oral submissions to the court, argues that the trial judge made errors in his review of the evidence, in particular that he had not provided a track record of income sufficient to satisfy a lender and that the commitment letter required additional funds. In his submission, he stated he had complied with all the provisions of the commitment letter and the additional funds could only have been as a result of “greed, fraud or negligence.” In his submission, the problem arose because of Mr. Chaudhry, or the lawyer that Mr.

Chaudhry had recommended, manipulating the situation and that it was Mr. Chaudhry, not he, who sought additional money. [ 9 ] As explained to Mr. Kharazi at the hearing of this application, an appeal to this court from a decision of a small claims appeal judge is only allowed under s. 15 of the Act on a question of law. In addition, the question of law must be one of importance which merits the attention of the court and the appeal must have arguable merit. [ 10 ] In my view, Mr. Kharazi has not satisfied the criteria of showing that there was an arguable error of law with respect to the trial judge’s reasons.

His allegations of impropriety on the part of Mr. Chaudhry are not supported by any evidence. There is no arguable ground of fraud or negligence on the record before me. [ 11 ] Therefore, I dismiss the application with costs of $100 payable by Mr. Kharazi to the respondents. J.A.