Avramenko (Bankrupt), Re, (2015) 474 Sask.R. 263 (QB)

Judge:Ball, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:May 13, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 474 Sask.R. 263 (QB);2015 SKQB 137
 
FREE EXCERPT

Avramenko (Bankrupt), Re (2015), 474 Sask.R. 263 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MY.055

Deloitte Restructuring Inc. as Trustee in Bankruptcy for Gordon Harvey Avramenko (applicant). v. Suzanne Avramenko, also known as Andrea Avramenko (respondent) and Gordon Harvey Avramenko (bankrupt)

(2015 QBG No. 672; 2015 SKQB 137)

Indexed As: Avramenko (Bankrupt), Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

May 13, 2015.

Summary:

The trustee in bankruptcy applied for an order for partition and sale of three quarter sections of farmland co-owned by the bankrupt and his wife. The wife opposed the application. She and the bankrupt continued to reside on the exempt home quarter. For the previous three years (since the assignment in bankruptcy), the trustee and the wife had attempted to reach an agreement for sale.

The Saskatchewan Court of Queen's Bench allowed the application. The court declined the trustee's request for solicitor and client costs of the application.

Editor's Note: For related decisions involving these parties, see (2014), 436 Sask.R. 176 and (2014), 436 Sask.R. 179.

Bankruptcy - Topic 6321

Administration of estate - Sale of property - General - [See first Real Property - Topic 6683 ].

Bankruptcy - Topic 6321

Administration of estate - Sale of property - General - The trustee in bankruptcy applied for an order for partition and sale of three quarter sections of farmland co-owned by the bankrupt and his wife - The wife opposed the application - She and the bankrupt continued to reside on the exempt home quarter - For the previous three years (since the assignment in bankruptcy), the trustee and the wife had attempted to reach an agreement for sale - The Saskatchewan Court of Queen's Bench allowed the application - The trustee had not brought the application for any improper purpose - The wife had not established the kind of economic oppression that would make an order for sale unjustified - The benefits to the bankrupt's estate were clear - At this juncture, an order for sale was the only realistic way to move the bankruptcy proceedings forward - See paragraphs 42 to 51.

Practice - Topic 7470.2

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Bankruptcy proceedings - The trustee in bankruptcy applied for an order for partition and sale of three quarter sections of farmland co-owned by the bankrupt and his wife - The wife opposed the application - She and the bankrupt continued to reside on the exempt home quarter - For the previous three years (since the assignment in bankruptcy), the trustee and the wife had attempted to reach an agreement for sale - The Saskatchewan Court of Queen's Bench, in allowing the trustee's application, declined the trustee's request for solicitor and client costs of the application due to the wife's pre-application dealings with the trustee - While the trustee's decision to delay the application may have been motivated by commendable, albeit unsuccessful, attempts to work with the wife, the resulting costs were not costs of this application - On this application, the wife had done nothing to warrant censure - See paragraphs 52 to 55.

Real Property - Topic 6603.1

Partition - General - Sale - When available - [See second Bankruptcy - Topic 6321 ].

Real Property - Topic 6681

Partition - Bars - General - [See first Real Property - Topic 6683 ].

Real Property - Topic 6683

Partition - Bars - Contravention with another Act or statute - The trustee in bankruptcy applied for an order for partition and sale of three quarter sections of farmland co-owned by the bankrupt and his wife - The wife opposed the application - She and the bankrupt continued to reside on the exempt home quarter - For the previous three years (since the assignment in bankruptcy), the trustee and the wife had attempted to reach an agreement for sale - The trustee asserted that an order for partition and sale had to be granted in the absence of clear evidence of bad faith by the trustee and/or oppressive financial consequences to the co-owner - The Saskatchewan Court of Queen's Bench rejected this assertion, stating, "I am not persuaded that the court's discretion to refuse this application is so limited. In my view, the partition and sale of family property is informed by different policy considerations than the liquidation of co-owned property to satisfy creditor demands. On an application for partition and sale by a trustee in bankruptcy, the court should assess, on a case-by-case basis, whether the respondent co-owner has identified rights or protections at law that would preclude the order or whether the evidence discloses facts that would render it unjust for such an order to be made." - See paragraphs 26 to 35.

Real Property - Topic 6683

Partition - Bars - Contravention with another Act or statute - The trustee in bankruptcy applied for an order for partition and sale of three quarter sections of farmland co-owned by the bankrupt and his wife - The wife opposed the application - She and the bankrupt continued to reside on the exempt home quarter - For the previous three years (since the assignment in bankruptcy), the trustee and the wife had attempted to reach an agreement for sale - The wife asserted that the Saskatchewan Farm Security Act precluded the trustee from obtaining an immediate order for the sale of either the bankrupt's or the wife's interests - The Saskatchewan Court of Queen's Bench rejected this argument, finding that the Act did not apply to applications of this kind - The trustee was not attempting to enforce payment by the wife under a security agreement nor was the application akin to an action to be brought by a "mortgagee" or a "vendor" - The trustee's application was not an "action" within the meaning of s. 3 of the Act - See paragraphs 36 to 41.

Real Property - Topic 6685

Partition - Bars - Hardship - [See second Bankruptcy - Topic 6321 ].

Sale of Land - Topic 7408

Remedies - General - Specific performance - When available - The trustee in bankruptcy applied for an order for partition and sale of three quarter sections of farmland co-owned by the bankrupt and his wife - The wife opposed the application - She and the bankrupt continued to reside on the exempt home quarter - For the previous three years (since the assignment in bankruptcy), the trustee and the wife had attempted to reach an agreement for sale - The Saskatchewan Court of Queen's Bench allowed the trustee's application - The court rejected the wife's assertion that the trustee had improperly refused to accept her offer to purchase the bankrupt's one half interest and that the court should order the trustee to sell to her for the price and conditions set out in her offer - Such an order would be tantamount to an order for specific performance of an agreement for sale - Since no agreement was reached, no order could be made - See paragraph 25.

Cases Noticed:

Etsell (Bankrupt), Re (2009), 338 Sask.R. 201; 2009 SKQB 226 (Bktcy. Reg.), refd to. [para. 26].

Grunert v. Grunert (1960), 32 W.W.R.(N.S.) 509 (Sask. Q.B.), refd to. [para. 30].

Coburn v. Coburn (1984), 36 Sask.R. 41 (Q.B.), refd to. [para. 30].

Wagman v. Obrigewitsch, [2010] Sask.R. Uned. 28; [2010] 9 W.W.R. 462; 2010 SKQB 84, refd to. [para. 30].

Goertz (Bankrupt) v. Goertz et al. (1994), 122 Sask.R. 93 (Q.B.), refd to. [para. 31].

Wiebe et al. v. 101105260 Saskatchewan Ltd. et al. (2013), 435 Sask.R. 79; 2013 SKQB 440, refd to. [para. 31].

Reed v. Reed (1985), 40 Sask.R. 289 (Q.B.), refd to. [para. 33].

Korolew v. Korolew (1972), 7 R.F.L. 162 (B.C.S.C.), refd to. [para. 33].

Matovich v. Matovich (2013), 421 Sask.R. 266; 2013 SKQB 205, refd to. [para. 33].

Nadeau v. Clement et al. (2004), 245 Sask.R. 169; 2004 SKQB 11, refd to. [para. 38].

Counsel:

Clayton Barry, for the applicant;

Amanda Verhaege, for the respondent;

Gordon Avramenko, on his own behalf.

This application was heard by Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on May 13, 2015.

To continue reading

FREE SIGN UP