AMIC Mortgage Investment Corp. v. Marquette Financial Services Ltd., (1981) 36 A.R. 501 (QB)

• Judge: Patterson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 30, 1981
• Citations: (1981), 36 A.R. 501 (QB)

AMIC Mortgage v. Marquette Financial (1981), 36 A.R. 501 (QB)

MLB headnote and full text

AMIC Mortgage Investment Corporation v. Marquette Financial Services Ltd.

(No. 7901-07415)

Indexed As: AMIC Mortgage Investment Corp. v. Marquette Financial Services Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Patterson, J.

January 30, 1981.

Summary:

A mortgage company committed itself to lend on the security of lands owned by a company. The commitment was subject to government approval by a certain date. The company refused to complete and went bankrupt. The mortgage company claimed that there was an equitable mortgage in its favour. The company claimed that there was no mortgage, because the condition respecting approval was not met. The mortgage company contended that the approval could be waived, because it was a condition for its benefit. The Alberta Court of Queen's Bench held that the contract was unenforceable, because neither party had made provision to waive the condition, which was precedent to the agreement.

Contracts - Topic 2281

Terms - Condition precedent - Defined - A mortgage agreement contained a condition requiring government approval by a certain date - The Alberta Court of Queen's Bench held that the approval requirement was a true condition precedent and would not be waived by either party - See paragraphs 5, 11.

Contracts - Topic 3555

Performance - Performance of conditions precedent - Waiver of condition precedent - A mortgage company contended that a condition precedent to an agreement could be waived because it was for its benefit - The Alberta Court of Queen's Bench held that the condition was a true condition precedent and could not be waived by either party - See paragraphs 10, 14, 15.

Contracts - Topic 3556

Performance of conditions precedent - Time for waiver of conditions precedent - The Alberta Court of Queen's Bench stated that when there is a blanket clause declaring time to be of the essence, it applies to the entire contract - The court stated that unless an exception clause or waiver is clearly made by the party seeking to be bound, the entire contract must be read as if time is of the essence - See paragraph 9.

Cases Noticed:

Turney v. Zhilka, [1959] S.C.R. 578, folld. [para. 12].

Barnett v. Harrison (1975), 57 D.L.R.(3d) 225, ref'd to. [para. 14].

Counsel:

Paul D. Edwards, for the plaintiff;

William M. LeClair, for the defendant.

This action was heard by PATTERSON, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary. The judgment of PATTERSON, J., was delivered on January 30, 1981, at Calgary, Alberta.