Albert Estate v. Gionet et al., (1992) 131 N.B.R.(2d) 226 (TD)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 21, 1992
• Jurisdiction: New Brunswick
• Citations: (1992), 131 N.B.R.(2d) 226 (TD)

Albert Estate v. Gionet (1992), 131 N.B.R.(2d) 226 (TD);

    131 R.N.-B.(2e) 226; 333 A.P.R. 226

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Joan Albert, Executrix of the Estate of Marcel Albert, deceased (plaintiff) v. Léon Gionet, Marco Holdings Ltée, Marco-Pêche Ltée, Entreprises Gionet Ltée and Banque Nationale du Canada (defendants)

(B/C/348/90)

Indexed As: Albert Estate v. Gionet et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

McIntyre, J.

October 22, 1992.

Summary:

The plaintiff objected to the defendant bank's plea of equitable set-off in its amended statement of defence. A pretrial conference was held to deal with the issue.

The New Brunswick Court of Queen's Bench, Trial Division, held that this was not a proper case in which the defence of equi­table set-off could be raised.

Banks and Banking - Topic 5165

Loans - Payment of loans - Right of set-off by bank - An Estate sued three defen­dants for breach of a shareholders' agree­ment, entered into by the deceased with the defendants - A bank held life insur­ance proceeds on the deceased's life - The Estate claimed the proceeds under the shareholders' agreement - The bank applied the proceeds to the debt of one of the defendants - The Estate sued the bank and the bank pleaded the defence of equi­table set-off because of guarantees signed by the deceased - The New Brunswick Court of Queen's Bench, Trial Division, held that a defendant could not raise the defence of equitable set-off where there was no clear connection between the shareholders' agreement, the insurance proceeds and the personal guarantees.

Practice - Topic 1850

Pleadings - Counterclaim and set-off - Set-off - Equitable set-off - [See Banks and Banking - Topic 5165 ].

Cases Noticed:

Coba Industries v. Millie Holdings (1985), 20 D.L.R.(4th) 689 (B.C.C.A.), refd to. [para. 10].

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385; 54 Alta. L.R.(2d) 193; 21 C.P.C.(2d) 1; 46 R.P.R. 234; 41 D.L.R.(4th) 385; 37 B.L.R. 241, refd to. [para. 10].

Counsel:

David Duncan Young, for the plaintiff;

Charles A. LeBlond, for the defendants, Léon Gionet, Marco Holdings Ltée, Marco-Pêche Ltée and Entreprises Gio­net Ltée;

Ronald J. LeBlanc, for the defendant, Banque Nationale du Canada.

This pretrial conference was held on October 21, 1992, before McIntyre, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following deci­sion orally on October 22, 1992.