Aries Resources Ltd. v. Zag Investments Ltd. et al., (1989) 99 A.R. 367 (QB)

• Judge: MacPherson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 13, 1989
• Citations: (1989), 99 A.R. 367 (QB)

Aries Resources Ltd. v. Zag Inv. Ltd. (1989), 99 A.R. 367 (QB)

MLB headnote and full text

Aries Resources Ltd. and Coopers & Lybrand Limited (plaintiffs) v. Zag Investments Ltd., Fouad Zagloul and Lotus Equipment Sales Ltd. (defendants)

(No. 8801-07528)

Indexed As: Aries Resources Ltd. v. Zag Investments Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

MacPherson, J.

July 13, 1989.

Summary:

After the plaintiffs commenced an action they applied to a master to add a plaintiff. The defendants moved to strike the plaintiffs' statement of claim.

The master dismissed the plaintiffs' application and allowed the defendants' application in part (see paragraph 4).

On appeal, the Alberta Court of Queen's Bench allowed the plaintiffs' application to add a plaintiff. In addition, the court affirmed that the original plaintiffs lacked the status to commence the action.

Practice - Topic 642

Adding parties - Mistake - Adding a plaintiff - By error the wrong plaintiff commenced an action - The Alberta Court of Queen's Bench allowed the plaintiff's application to add the proper plaintiff where the defendants would not be prejudiced (see paragraphs 11 to 18).

Receivers - Topic 4646

Actions by receivers - Conditions precedent - Authority - The Alberta Court of Queen's Bench held that a receiver/manager did not have the capacity to maintain an action, as a creditor, under the Fraudulent Preferences Act, where the original receiving order did not give such authority to the receiver (see paragraphs 6 to 10).

Cases Noticed:

Hobbema Farms Ltd. v. Grande Cache Motor Inn Ltd. et al. (1977), 9 A.R. 208; 25 C.B.R. (N.S.) 207, refd to. [para. 9].

Central Welding Ltd. et al. v. Western Assurance Company, [1976] 6 W.W.R. 169, refd to. [para. 15].

Frank v. Canada (Minister of Indian and Northern Affairs) (1988), 88 A.R. 241; 56 Alta. L.R.(2d) 289, refd to. [para. 16].

Robinson Engineering Co. et al. v. Wasabe Resources Ltd. et al. (1988), 93 A.R. 321, refd to. [para. 16].

Westinghouse Canada Ltd. v. Buchar et al., 59 D.L.R.(3d) 641 (Ont. C.A.) 646, refd to. [para. 17].

Statutes Noticed:

Fraudulent Preferences Act, R.S.A. 1980, c. F-18, sect. 5 [para. 7].

Rules of Court (Alta.), rule 38(2) [para. 11].

Counsel:

G.N. McDermid, Q.C., for Coopers & Lybrand Limited;

P.T. McCarthy, for the Bank of British Columbia, division of Hong Kong Bank of Canada;

G.J. McKibben, for Zag Investments Ltd. and Fouad Zagloul;

K.J. Martens, for Lotus Equipment Sales Ltd.

This appeal was heard by MacPherson, J., of the Alberta Court of Queen's Bench. The decision of MacPherson, J., was delivered at Calgary, Alberta, on July 13, 1989.