Bearsfield Developments Inc. et al. v. McNabb, (2014) 426 N.B.R.(2d) 352 (TD)

Judge:McNally, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:August 19, 2014
Jurisdiction:New Brunswick
Citations:(2014), 426 N.B.R.(2d) 352 (TD);2014 NBQB 212
 
FREE EXCERPT

Bearsfield Dev. Inc. v. McNabb (2014), 426 N.B.R.(2d) 352 (TD);

    426 R.N.-B.(2e) 352; 1110 A.P.R. 352

MLB headnote and full text

Sommaire et texte intégral

Temp. Cite: [2014] N.B.R.(2d) TBEd. NO.012

Renvoi temp.: [2014] N.B.R.(2d) TBEd. NO.012

Bearsfield Developments Inc. and Mod-Aire Homes Limited (applicants/respondent) v. Debra Ann McNabb (respondent/applicant)

(MM/0022/14; 2014 NBQB 212; 2014 NBBR 212)

Indexed As: Bearsfield Developments Inc. et al. v. McNabb

Répertorié: Bearsfield Developments Inc. et al. v. McNabb

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

McNally, J.

September 10, 2014.

Summary:

Résumé:

Bearsfield Developments Inc. and Mod-Aire Homes Ltd. obtained a judgment in Ontario against McNabb in the amount of $1,216,892.57. The judgment was registered in New Brunswick. Barsfield and Mod-Aire obtained an Attaching Order pursuant to the New Brunswick Garnishee Act, attaching various debts owed to McNabb. McNabb applied pursuant to s. 4 of the Garnishee Act seeking a summons calling upon Bearsfield and Mod-Aire to show cause why the Attaching Order should not be set aside or altered. McNabb made a voluntary assignment into bankruptcy on the same day she filed the application. Bearsfield and Mod-Aire were effectively the sole creditors of the bankrupt. They submitted that the application to show cause should be dismissed in light of McNabb's assignment in bankruptcy. They supported the position of the trustee in bankruptcy that the issue of whether the assets or accounts in question formed part of the bankrupt's estate should be left to be determined in the bankruptcy proceedings.

The New Brunswick Court of Queen's Bench, Trial Division, held that the outstanding issues in relation to the property and assets in dispute should properly be determined in and by the bankruptcy proceedings to which McNabb elected when she made her voluntary assignment into bankruptcy. Accordingly, her application for a summons to show cause pursuant to s. 4 of the Garnishee Act was dismissed.

Bankruptcy - Topic 6745

Practice - Jurisdiction - To determine property of bankrupt - [See Creditors and Debtors - Topic 4606 ].

Creditors and Debtors - Topic 4606

Garnishment by creditor - Practice - Setting aside - Bearsfield Developments Inc. and Mod-Aire Homes Ltd. obtained a judgment in Ontario against McNabb in the amount of $1,216,892.57 - The judgment was registered in New Brunswick - McNabb was formerly employed by Bearsfield and Mod-Aire and the Ontario action was premised upon an alleged fraud perpetrated upon the companies by McNabb - Barsfield and Mod-Aire obtained an Attaching Order pursuant to the New Brunswick Garnishee Act, attaching various debts owed to McNabb - McNabb applied pursuant to s. 4 of the Garnishee Act seeking a summons calling upon Bearsfield and Mod-Aire to show cause why the Attaching Order should not be set aside or altered - McNabb made a voluntary assignment into bankruptcy on the same day she filed the application - Bearsfield and Mod-Aire were effectively the sole creditors of the bankrupt - They submitted that the application to show cause should be dismissed in light of McNabb's assignment in bankruptcy - They supported the position of the trustee in bankruptcy that the issue of whether the assets or accounts in question formed part of the bankrupt's estate should be left to be determined in the bankruptcy proceedings - The New Brunswick Court of Queen's Bench, Trial Division, held that the outstanding issues in relation to the property and assets in dispute should properly be determined in and by the bankruptcy proceedings to which McNabb elected when she made her voluntary assignment into bankruptcy - Accordingly, her application for a summons to show cause pursuant to s. 4 of the Garnishee Act was dismissed.

Créanciers et débiteurs - Cote 4606

Saisie-arrêt par le creancier - Procédure - Annulation - [Voir Creditors and Debtors - Topic 4606 ].

Faillite - Cote 6745

Procédure - Compétence - Détermination des biens du failli - [Voir Bankruptcy - Topic 6745 ].

Counsel:

Avocats:

Stephen J. Hutchison and Sacha D. Morisset, for the applicants (respondents);

George L. Cooper, for the respondent (applicant), Debra Ann McNabb.

This application was heard on August 19, 2014, before McNally, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on September 10, 2014.

To continue reading

FREE SIGN UP