Abba (Bankrupt), Re, (1998) 230 A.R. 185 (QB)

• Judge: Agrios, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Thursday September 03, 1998
• Citations: (1998), 230 A.R. 185 (QB)

Abba (Bankrupt), Re (1998), 230 A.R. 185 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. SE.074

In The Matter Of the Bankruptcy of Badrudin Mohamood Abba of the City of Edmonton in the Province of Alberta

(Action No. 59767)

Indexed As: Abba (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Agrios, J.

September 3, 1998.

Summary:

A father and mother transferred their jointly owned residential property to the mother and their son. Five months later the father declared bankruptcy. The trustee applied for a declaration that the transfer was void as being a settlement under the Bank­ruptcy and Insolvency Act or a fraudu­lent conveyance under the Fraudulent Pref­erences Act.

The Alberta Court of Queen's Bench determined the issue accordingly.

Bankruptcy - Topic 410

Property of bankrupt - General - Transfer of exempt assets - Effect - A father and mother transferred their jointly owned residential property to the mother and their son jointly - Five months later the father declared bankruptcy - The trustee applied for a declaration that the transfer was void - At issue was whether a debtor could transfer exempt property to third parties, subsequently go bankrupt and the third parties claim the exemption against the trustee in bankruptcy - The Alberta Court of Queen's Bench stated that the answer to the question was, in appropriate circum­stances, yes - The court stated that it was significant that, in this case, the father was living in the house at the time of sale and at the time of bankruptcy.

Bankruptcy - Topic 485

Property of bankrupt - Exemptions or exclusions - Homestead property - [See Bankruptcy - Topic 410 ].

Bankruptcy - Topic 6722

Practice - Parties - Status or standing - A father and mother transferred their jointly owned residential property to the mother and their son jointly - Five months later the father declared bankruptcy - The trustee applied for a declaration that the transfer was void - The trustee alleged that because this was a voluntary sale of exempt property by a bankrupt and the bankrupt did not have an ownership inter­est in the residence at the time of bank­ruptcy, the bankrupt had no claim on exemption and neither the mother nor their son, the new owners, could themselves raise the exemption - The Alberta Court of Queen's Bench held that the mother and son had status because their property rights were directly affected - They could raise the bankrupt's exempt status in the resi­dence - See paragraph 5.

Cases Noticed:

Canadian Credit Men's Trust Association v. Umbel and Gillespie Grain Co., [1931] 3 W.W.R. 145 (Alta. S.C. Bktcy.), dist. [para. 5].

Wilson (Bankrupt), Re (1996), 178 A.R. 237; 110 W.A.C. 237; 38 C.B.R.(3d) 245 (C.A.), dist. [para. 6].

Alberta (Treasury Branches) v. Wilson - see Wilson (Bankrupt), Re.

Goertz (Bankrupt) v. Goertz et al. (1995), 137 Sask.R. 267; 107 W.A.C. 267; 37 C.B.R.(3d) 1 (C.A.), not folld. [para. 7].

Ramgotra (Bankrupt), Re, [1996] 1 S.C.R. 325; 193 N.R. 186; 141 Sask.R. 88; 114 W.A.C. 88; 37 C.B.R.(3d) 141, folld. [para. 7].

Ramgotra (Trustee of) v. North American Life Assurance Co. - see Ramgotra (Bankrupt), Re.

Melnychuk (Bankrupt), Re (1997), 197 A.R. 62 (Q.B. Bktcy. Registrar), folld. [para. 7].

Holthuysen (Trustee of) v. Holthuysen (1986), 49 Alta. L.R.(2d) 25 (C.A.), refd to. [para. 9].

Northwest Thresher Co. v. Fredericks (1911), 44 S.C.R. 318, refd to. [para. 11].

Counsel:

D.N. Tkachuk, for the applicant, Alberta Treasury Branches;

K.A. Rowan, for the respondent, Daulatkhanu Abba and Mohamood Abba.

This application was heard by Agrios, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on September 3, 1998.