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[309] According to the “État des déboursements”113, bearing in mind that the “urgent
repairs” had to be performed before the winter of 2019 for an estimated global amount of
$223,207.92, by the end of August of 2021, almost two years later, Chenoy DDO had
only spent a total of $109,270.54 on account of those “urgent repairs” with the roof only
being done in July 2021 (two winters later) at the cost of $54,038.25114 instead of the
estimate of $90,446,23115 provided to the Court in October 2019.
[310] The Court also bears in mind that the estimates produced by Argyro at the time
that were contested by Jimmy as exaggerated, also purported to justify a loan increased
to $600,000.
[311] Be that as it may, although the $600,000 loan proceeds were also used to pay the
previous hypothecary loans as directed by the Court in its judgment of October 28, 2019,
the evidence revealed that contrary to the Court’s Orders that provided strict instructions
on the use of the $600,000 loan proceeds, a cheque dated January 30, 2020, in the
amount of $46,164.72 payable to the order of Chenoy DDO116 (as it should have been as
the borrower) was issued by the notary but according to Argyro, she erroneously
deposited the cheque in the bank account of DDO Restaurant instead of the bank account
of its true beneficiary, Chenoy DDO.
[312] In the “État des déboursements”117, the notary indicated that the proceeds of the
$46,164.72 cheque represented an “Avance aux administrateurs”.
[313] Argyro could not remember who actually asked the notary to issue that cheque
and whether it was issued because the lender would have given his permission, thus
ignoring completely the strict Orders of the Court.
[314] In any event, Argyro explained that the $46,164.72 were to refund advances made
in the past by DDO Restaurant to NKDS (the Country House).
[315] Then, why would Chenoy DDO use its own borrowed money destined for urgent
repairs to be carried on its building, and in contravention to the Court Order of October
28, 2019118, to “refund” debts due by NKDS to DDO Restaurant?
113 Ibid.
114 Ibid.
115 P-2 of the Motion to lift the Safeguard Order in part of September 26, 2019.
116 P-21B.
117 CP-25A.
118 ALLOWS and AUTHORIZES Chenoy Delicatessen & Steak House (1976) Ltd. to grant an immovable
hypothec against the Chenoy Property situated at 3616 St-Jean Boulevard, in the Municipality of Dollard-
des-Ormeaux to secure in favour of the lender a loan of up to $600,000 in capital with the strict
understanding that the proceeds of the proposed loan shall be used primarily to reimburse the two existing
hypothecary loans affecting the Chenoy Property in favour of the Scotia Bank and ICC and secondarily, to
carry out the repairs to the Chenoy Property situated at 3616 St-Jean Boulevard, in the Municipality of
Dollard-des-Ormeaux that were more fully described in Defendants’ “Motion to lift the Safeguard Order in
part” of September 26, 2019 [in reference to the estimates Exhibits P-2 to P-6]; [Emphasis added]