Advantage Credit Union v. Quibell et al., 2012 SKCA 125

• Judge: Cameron, Richards and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 13, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 125;(2012), 405 Sask.R. 158 (CA)

Advantage Credit v. Quibell (2012), 405 Sask.R. 158 (CA);

    563 W.A.C. 158

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. DE.084

Pinder Bueckert & Associates Inc. (respondent/appellant) v. Ross Allan Quibell (applicant/non-party) and Advantage Credit Union (defendant/applicant/respondent) and Doreen May Quibell, Bank of Montreal, Toronto-Dominion Bank (Visa) and Saskatchewan Wheat Pool Inc. (defendants/non-parties)

(CACV2144; 2012 SKCA 125)

Indexed As: Advantage Credit Union v. Quibell et al.

Saskatchewan Court of Appeal

Cameron, Richards and Caldwell, JJ.A.

December 13, 2012.

Summary:

A credit union pursued a mortgage foreclosure action against a bankrupt mortgagor through to a judicial sale. The credit union sought to recover its solicitor-client costs out of the surplus sale proceeds from the bankruptcy trustee. The trustee resisted, arguing that the Saskatchewan Farm Security Act (SFSA), s. 33, precluded a farmland mortgagee from recovering any but its party and party costs on foreclosure.

The Saskatchewan Court of Queen's Bench, in a decision reported 372 Sask.R. 203, allowed the credit union to recover its solicitor-client costs out of the surplus sale proceeds. The trustee appealed, claiming entitlement to the proceeds.

The Saskatchewan Court of Appeal allowed the appeal.

Bankruptcy - Topic 3635

Creditors - Claims - Costs of enforcing security - [See Mortgages - Topic 7758 ].

Mortgages - Topic 5519

Mortgage actions - Action for foreclosure and sale - Costs - [See Mortgages - Topic 7758 ].

Mortgages - Topic 7758

Mortgagee's remedies - General - Statutory suspension (incl. farm land security legislation) - Practice - Costs and disbursements - A credit union pursued a mortgage foreclosure action against a bankrupt mortgagor through to a judicial sale - The credit union sought to recover its solicitor-client costs out of the surplus sale proceeds from the bankruptcy trustee - The trustee resisted, arguing that the Saskatchewan Farm Security Act (SFSA), s. 33, precluded a farmland mortgagee from recovering any but its party and party costs on foreclosure - The chambers judge disagreed and allowed the credit union's request - The trustee appealed - The Saskatchewan Court of Appeal allowed the appeal - The trustee was entitled to the surplus proceeds because the farmland was property of the bankrupt - In any event, the SFSA precluded the credit union from recovering its solicitor-client costs out of the surplus - The court's inherent jurisdiction could not be used to circumvent the SFSA provisions - Nor was recovery justified on equitable principles.

Practice - Topic 7466.4

Costs - Solicitor and client costs - Entitlement to - Mortgage actions - [See Mortgages - Topic 7758 ].

Cases Noticed:

Siemens et al. v. Bawolin et al., [2002] 11 W.W.R. 246; 219 Sask.R. 282; 272 W.A.C. 282; 2002 SKCA 84, refd to. [para. 11].

Father & Son Investments Inc. v. Maverick Brewing Corp. (2007), 436 A.R. 130; 290 D.L.R.(4th) 175; 2007 ABQB 651, refd to. [para. 12].

Statutes Noticed:

Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, sect. 33(3), sect. 33(4) [para. 2].

Counsel:

Christopher Boychuk, Q.C., for the appellant;

Donald Layh, Q.C., and Avery Layh, for the respondent.

This appeal was heard on December 13, 2012, before Cameron, Richards and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. The following decision was delivered by Cameron, J.A., for the court, on December 13, 2012.