Alberta (Treasury Branches) v. Naber, (1994) 161 A.R. 393 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 20, 1994
• Citations: (1994), 161 A.R. 393 (QBM)

Alta. v. Naber (1994), 161 A.R. 393 (QBM)

MLB headnote and full text

Province of Alberta Treasury Branches (plaintiff) v. Albert Naber (defendant)

(Action No. 9303-17534)

Albert Naber and Hildegunde Naber (plaintiff) v. Province of Alberta Treasury Branches (defendant)

(Action No. 9403-14582)

Indexed As: Alberta (Treasury Branches) v. Naber

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

October 20, 1994.

Summary:

A farmer gave a promissory note and a mortgage to secure a loan. Later there were three more demand loans. The farmer and his wife gave a general security agreement covering all liability. Subsequently, the lender called all the loans. The farmer failed to pay the loans. The lender commenced a combined debt/foreclosure action on the initial loan and mortgage and obtained an order nisi. The lender also seized and sold cattle and other chattels under the general security agreement. Before the foreclosure redemption period expired, the farmer sued the lender alleging, inter alia, that the lender breached an agreement to consolidate the loans and give a preferential rate of interest. The farmer applied for an order setting aside the "noting in default" in the foreclosure action, staying further proceedings in the foreclosure action, consolidating the two actions, and staying execution on the general security agreement. The lender applied to have the farmer's action struck out at least insofar as it encompassed the mortgage loan.

A Master of the Alberta Court of Queen's Bench dismissed the farmer's application and allowed the lender's.

Mortgages - Topic 5507.1

Mortgage actions - Action for foreclosure and sale - Foreclosure order - Setting aside order in default of defence - A farmer gave a promissory note and a mortgage to secure a loan - Later there were three more demand loans - Subsequently, the lender commenced a combined debt/foreclosure action on the initial loan and mortgage - The farmer delivered a demand of notice through a lawyer (i.e., liability was admitted) - The lender obtained an order nisi - Before the redemption period expired the farmer sued the lender alleging that the lender breached an agreement to consolidate the loans and give a preferential rate of interest - The farmer applied for an order setting aside the "noting in default" in the foreclosure action - A Master of the Alberta Court of Queen's Bench denied the application - See paragraphs 19 to 31.

Mortgages - Topic 5513

Mortgage actions - Action for foreclosure and sale - Foreclosure order, amending, staying or vacating - [See Mortgages - Topic 5507.1 ].

Mortgages - Topic 5513

Mortgage actions - Action for foreclosure and sale - Foreclosure order, amending, staying or vacating - A farmer gave a note and a mortgage to secure a loan - Later there were three demand loans - The farmer and his wife gave a general security agreement - The lender commenced a foreclosure action on the initial loan and mortgage - The husband delivered a demand of notice through a lawyer - The lender obtained an order nisi - Before the redemption period expired the farmer and his wife sued the lender alleging that the lender breached an agreement to consoli­date the loans and give a preferential rate of interest - The farmer applied for an order staying the foreclosure action - A Master of the Alberta Court of Queen's Bench declined to grant the stay - See paragraphs 32 to 44.

Practice - Topic 2228

Pleadings - Striking out pleadings - Grounds - Res judicata - A farmer gave a note and a mortgage to secure a loan - Later there were three demand loans - The farmer and his wife gave a general security agreement - The lender com­menced a foreclosure action on the initial loan and mortgage and obtained an order nisi - Before the redemption period expired the farmer and his wife sued the lender alleging that the lender breached an agreement to consolidate the loans and give a preferential rate of interest - The lender applied to have the farmer's action struck out insofar as it encompassed the mortgage loan on the ground that it was barred by the foreclosure action - A Mas­ter of the Alberta Court of Queen's Bench allowed the lender's application - See paragraphs 58 to 60.

Practice - Topic 2229

Pleadings - Striking out pleadings - Grounds - Issues which could have been raised in prior action between same parties - [See Practice - Topic 2228 ].

Practice - Topic 4123

Joinder of causes and consolidations - Consolidation of actions - When not available - A farmer gave a promissory note and a mortgage to secure a loan - Later there were three more demand loans - The lender commenced a combined debt/foreclosure action on the initial loan and mortgage - The farmer delivered a demand of notice through a lawyer (i.e., liability was admitted) - The lender obtained an order nisi - Before the re­demption period expired the farmer sued the lender alleging that the lender breached an agreement to consolidate the loans and give a preferential rate of interest - The farmer applied for a consolidation of the actions - A Master of the Alberta Court of Queen's Bench held there could be no consolidation where one action had gone to judgment - See paragraphs 19 to 31.

Practice - Topic 7453

Costs - Solicitor and client costs - En­titlement - Delaying tactics - A farmer gave a promissory note and a mortgage to secure a loan - Later there were three more demand loans - The farmer gave a general security agreement to cover all liabilities - The lender demanded payment of all loans - The lender foreclosed and obtained an order nisi - Cattle and other chattels were seized and sold under the general security agreement - The farmer sued the lender alleging that the lender breached an agreement to consolidate the loans - The farmer applied for, inter alia, stays of proceedings under the general security agreement and in the foreclosure action - A Master of the Alberta Court of Queen's Bench declined to grant the stays and awarded the lender solicitor and client costs - See paragraphs 53 to 61.

Trade Regulation - Topic 3131

Agricultural lending - Enforcement of security - Stay of execution - A farmer gave a promissory note and a mortgage to secure a loan - Later there were three more demand loans - The farmer gave a general security agreement to cover all liabilities - The lender demanded payment of all loans - The farmer went to the Farm Review Board - The lender foreclosed and obtained an order nisi - Cattle and other chattels were seized and sold under the general security agreement - Before the foreclosure redemption period expired, the farmer sued the lender alleging that the lender breached an agreement to consoli­date the loans - The farmer applied for a stay of proceedings under the general security agreement - A Master of the Alberta Court of Queen's Bench declined to grant the stay - See paragraphs 46 to 57.

Cases Noticed:

Canada Permanent Trust Co. v. King Art Development Ltd. et al. (1984), 52 A.R. 139 (C.A.), refd to. [para. 22].

Abacus Cities Ltd. (Bankrupt) v. Bank of Montreal et al. (1986), 70 A.R. 55 (C.A.), refd to. [para. 23].

Terroco Industries Ltd. v. Viking Oilfield Supply Ltd. (1987), 84 A.R. 274 (C.A.), refd to. [para. 23].

Webmor Financial Services Ltd. v. Drum­mond (James M.) Holdings Ltd. et al. (1981), 33 A.R. 493 (Q.B. Master), refd to. [para. 24].

First Investors Corp. v. 64675 Alberta Ltd. (1984), 38 Alta. L.R.(2d) 45 (Q.B. Mas­ter), refd to. [para. 24].

Maple Credit Ltd. v. S.O.N. Holdings Ltd. et al. (1983), 53 A.R. 390; 29 Alta. L.R.(2d) 162 (Q.B.), refd to. [para. 24].

Alberta v. Fletcher and Fletcher (1985), 61 A.R. 146; 37 Alta. L.R.(2d) 320 (Q.B.), refd to. [para. 28].

Yorkshire Trust Co. v. Armwest Develop­ment Ltd. et al. (1986), 74 A.R. 241 (C.A.), refd to. [para. 28].

Royal Bank v. LRSCO Investments Ltd., 18 Alta. L.R.(2d) 148 (C.A.), refd to. [para. 29].

Counsel:

D.N. Tkachuk (Bryan and Company), for the plaintiff;

B.M. Geiger, for the defendants.

These applications were heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 20, 1994.