207053 Alberta Ltd. (Bankrupt), Re

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Bielby, J.
• Citation: (1998), 233 A.R. 313 (QB)
• Date: 15 September 1998

207053 Alta. Ltd. (Bankrupt), Re (1998), 233 A.R. 313 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. OC.002

In The Matter Of the Bankruptcy of 207053 Alberta Limited (formerly Arden White Interiors Limited)

(Action No. BKCY: 65756)

Indexed As: 207053 Alberta Ltd. (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

September 15, 1998.

Summary:

Manning petitioned for a receiving order against Arden White Interiors Ltd. The company argued that the petition was a nullity because Manning was not a creditor at the time the petition was filed since Man­ning had only an equitable claim (i.e., an unjust en­richment claim) against the com­pany.

The Alberta Court of Queen's Bench granted the receiving order.

Bankruptcy - Topic 1922

Receiving order - Application or petition into bankruptcy - Persons entitled to apply - Manning forwarded $150,000 to Arden White Interiors Ltd. in anticipation of a shareholder's agreement and the purchase of shares - The funds were to be returned if the shareholder's agreement and share purchase fell through - No agreement was reached - Manning sought to petition the company into bankruptcy based upon a cause of action in unjust enrichment - Issues arose respecting whether a claimant in unjust enrichment had status to petition a company into bankruptcy and whether the company committed an act of bank­ruptcy - The Alberta Court of Queen's Bench answered the questions in the affir­mative and granted the receiving order.

Bankruptcy - Topic 1928

Receiving order - Application or petition into bankruptcy - Requirement of act of bankruptcy within six months preceding date of application - [See Bankruptcy - Topic 1922 ].

Cases Noticed:

Diewold v. Diewold, [1941] S.C.R. 35, refd to. [para. 10].

Stephen v. Stewart, [1943] 3 W.W.R. 225 (B.C.C.A.), refd to. [para. 11].

Amalgamated Rare Earth Mines Ltd., Re (1958), 37 C.B.R. 168 (Ont. C.A.), refd to. [para. 16].

Goodis-Wolf Inc., Re (1990), 80 C.B.R.(N.S.) 146 (Ont. H.C.), refd to. [para. 23].

Modern Air Spray Ltd. v. Homme, Woods and Carruthers (1983), 45 A.R. 95 (Q.B.), refd to. [para. 27].

Goldrei v. Sinclair, [1917] 1 K.B. 180 (C.A.), refd to. [para. 29].

King Petroleum Ltd., Re (1973), 19 C.B.R.(N.S.) 16 (Ont. H.C.), refd to. [para. 37].

Ko Da Trading Co., Re (1992), 9 C.B.R.(3d) 141 (B.C.S.C.), refd to. [para. 44].

Homes, Re (1975), 20 C.B.R.(N.S.) 111 (Ont. S.C.), refd to. [para. 45].

Joyce, Re (1984), 51 C.B.R.(N.S.) 152 (Ont. H.C.), refd to. [para. 55].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect, 42(1)(f), sect. 42(1)(g), sect. 42(1)(j) [para. 33]; sect. 43(1) [para. 8].

Authors and Works Noticed:

Dictionary of Canadian Law (2nd Ed.) [para. 10].

Houlden, Lloyd W., and Morawetz, Carl H., Bankruptcy and Insolvency Law of Canada, p. 5-39 [para. 12].

Maddaugh, Peter D., and McCamus, John D., The Law of Restitution (1990), p. 463 [para. 22].

Counsel:

D.C.I. Lucky (Reynolds, Mirth, Richards & Farmer), for the petitioner, Susan J. Manning;

Robert Feraco (Milner Fenerty), for 207053 Alberta Ltd.

This application was heard before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on September 15, 1998.