Advantage Credit Union v. Quibell et al., (2011) 372 Sask.R. 203 (QB)

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 07, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 372 Sask.R. 203 (QB);2011 SKQB 144

Advantage Credit v. Quibell (2011), 372 Sask.R. 203 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. AP.039

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

(2008 Q.B. No. 32; 2011 SKQB 144)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

Wilson, J.

April 7, 2011.

Summary:

When Quibell filed an assignment in bankruptcy, he was the owner of three quarter sections of land. Quibell estimated the land's value at $100,000 in his statement of affairs. A credit union held a first mortgage charge on the land. The indebtedness to the credit union was listed as $100,000. Quibell received an absolute discharge. The shortfall owing to his creditors was $167,000. The credit union obtained an order for judicial sale of the land for $205,290. After the credit union was paid the principal owing on the mortgage, interest and its taxable costs, a surplus of $34,722.56 was paid into court. Quibell asserted that he was entitled to the surplus. The trustee, who had not been discharged, asserted that the funds should be paid to it for the benefit of Quibell's creditors. The credit union sought payment to it from the surplus of an additional sum of $4,914.01 to cover its actual costs of enforcing the mortgage.

The Saskatchewan Court of Queen's Bench held that the property had wholly vested in the trustee, who remained vested, and was entitled to the surplus generated from the sale of the land. The court ordered payment of $4,914.01 to the credit union.

Bankruptcy - Topic 436

Property of bankrupt - Particular property - Assets received by trustee after discharge - When Quibell filed an assignment in bankruptcy, he was the owner of three quarter sections of land - Quibell estimated the land's value at $100,000 in his statement of affairs - A credit union held a first mortgage charge on the land - The indebtedness to the credit union was listed as $100,000 - Quibell received an absolute discharge - The shortfall owing to his creditors was $167,000 - The credit union obtained an order for judicial sale of the land for $205,290 - After the credit union was paid the principal owing on the mortgage, interest and its taxable costs, a surplus of $34,722.56 was paid into court - Quibell asserted that he was entitled to the surplus - The trustee, who had not been discharged, asserted that the funds should be paid to it for the benefit of Quibell's creditors - The Saskatchewan Court of Queen's Bench held that the property had wholly vested in the trustee, who remained vested, and was entitled to the surplus generated from the sale of the land - See paragraphs 10 to 13.

Bankruptcy - Topic 8844

Discharge of debtor - Effect of discharge - Respecting property of bankrupt - [See Bankruptcy - Topic 436 ].

Bankruptcy - Topic 8911

Discharge of debtor - Absolute discharge - Payments made to trustee after discharge - [See Bankruptcy - Topic 436 ].

Mortgages - Topic 5519

Mortgage actions - Action for foreclosure and sale - Costs - When Quibell filed an assignment in bankruptcy, he was the owner of three quarter sections of land - Quibell estimated the land's value at $100,000 in his statement of affairs - A credit union held a first mortgage charge on the land - The indebtedness to the credit union was listed as $100,000 - Quibell received an absolute discharge - The shortfall owing to his creditors was $167,000 - The credit union obtained an order for judicial sale of the land for $205,290 - After the credit union was paid the principal owing on the mortgage, interest and its taxable costs, a surplus of $34,722.56 was paid into court - From that amount, the credit union sought payment to it of an additional sum of $4,914.01 to cover its actual costs of enforcing the mortgage - The trustee asserted, inter alia, that under s. 33 of the Saskatchewan Farm Security Act, the credit union was restricted to the recovery of party and party costs as the land was farm land - The Saskatchewan Court of Queen's Bench ordered payment of the sum to the credit union - Sections 33(3) and 33(4) of the Act created a statutory benefit in favour of a farmer - This was in keeping with the intention of the Act as "extraordinary debt moratorium legislation" - The statutory right was one that could only be exercised by the farmer (here, the bankrupt) - The right had not passed to the trustee - Thus, the credit union was able to claim its actual costs - See paragraphs 14 to 31.

Practice - Topic 7466.4

Costs - Solicitor and client costs - Entitlement to - Mortgage actions - [See Mortgages - Topic 5519 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See Mortgages - Topic 5519 ].

Cases Noticed:

Dovgala (Bankrupt), Re, [2005] O.T.C. Uned. 738; 14 C.B.R.(5th) 182 (Sup. Ct. Registrar), refd to. [para. 12].

Gardham (Bankrupt), Re (2007), 219 Man.R.(2d) 78; 35 C.B.R.(5th) 308; 2007 MBQB 223 (Registrar), refd to. [para. 18].

Toronto-Dominion Bank v. Mulatz (1994), 120 Sask.R. 134; 68 W.A.C. 134; 111 D.L.R.(4th) 601 (C.A.), dist. [para. 19].

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. 22].

Czerwonka v. Paslawski (1989), 77 Sask.R. 206 (Q.B.), refd to. [para. 24].

Statutes Noticed:

Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, sect. 33 [para. 16].

Counsel:

Grant Carson, for the applicant;

Donald Layh, Q.C., for the plaintiff;

Christopher Boychuk, Q.C., for the respondent.

This application was heard by Wilson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following fiat on April 7, 2011.