Benevento v. Glenora Investments Ltd., (1995) 145 N.S.R.(2d) 1 (SC)

• Judge: Nathanson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 27, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 145 N.S.R.(2d) 1 (SC)

Benevento v. Glenora Inv. Ltd. (1995), 145 N.S.R.(2d) 1 (SC);

  418 A.P.R. 1

MLB headnote and full text

In The Matter Of an application of the applicant pursuant to the Tenancies and Distress for Rent Act, R.S.N.S. 1989, c. 464, s. 4, for a declaration that the applicant is the registered owner of certain goods, chattels and equipment which have been distrained for rent arrears by the respondent; in addition, for an order that the distraint for rent on the goods, chattels and equipment owned by the applicant be released forthwith, or in the alternative, an order to stay the sale of the aforementioned chattels, equipment and goods on a Distress for Rent until the question as to what party has title or an interest in the said chattels, goods and equipment has been settled, and further an order that the applicant be awarded general damages for wrongful Distress for Rent by the respondent.

Torri Benevento, of Philadelphia, in the State of Pennsylvania, United States of America (applicant) v. Glenora Investments Limited, a body corporate, with head office in Halifax, in the County of Halifax, Province of Nova Scotia (respondent)

(S.H. No. 118284)

Indexed As: Benevento v. Glenora Investments Ltd.

Nova Scotia Supreme Court

Nathanson, J.

October 5, 1995.

Summary:

Zorba's operated a restaurant in premises owned by Glenora. Zorba's shares were purchased by LaBarca. LaBarca sold the business, including chattels and equipment, to Dodge. Dodge executed two chattel mort­gages in favour of a bank. Dodge defaulted and the bank executed its rights under the chattel mortgages, but left the chattels on the premises. Glenora then leased to LeCruz. Benevento purchased the chattels from the bank, with the intention of leasing to Le­Cruz. LeCruz defaulted in the rent. Glenora distrained for rent and changed the locks. Benevento applied under the Tenancies and Distress for Rent Act for a declaration that she was the registered owner of certain chattels and equipment and sought general damages for wrongful distraint.

The Nova Scotia Supreme Court allowed the action in part. The distraint was valid as to equipment sold by Glenora's owner to LeCruz and all items of food, liquor and chattels which were the property of LeCruz. The distraint was improper respecting all chattels which were owned by Dodge and mortgaged to the bank. Benevento also owned all trade or chattel fixtures, but her bill of sale from the bank was void, or at least ineffective to convey those items to her for noncompliance with s. 5 of the Bills of Sale Act (sufficient description of chattels). The court awarded Benevento $1,000 dam­ages for wrongful distraint.

Chattel Mortgages and Bills of Sale - Topic 1183

Validity - Essential elements - Descrip­tion of chattels - Sufficiency of - Section 5 of the Bills of Sale Act required that a bill of sale contain a "sufficient and full descrip­tion of the chattels" to permit them to be "readily and easily known and dis­tin­guished" - Benevento purchased chattels from a bank, which had seized them under chattel mortgages - Many items had no description and no model or serial numbers - The Nova Scotia Supreme Court stated that whether there was a sufficient de­scription was a question of fact - A person must be able to determine, with proper inquiries, whether the chattel at issue was encumbered - The court held that those chattels with serial numbers or other de­scriptions matching up with corresponding items listed in the chattel mortgages com­plied with s. 5 - The remaining chattels were not sufficiently described - See paragraphs 35 to 40.

Landlord and Tenant - Topic 8203

Fixtures and personalty - Fixture - What constitutes - [See Landlord and Tenant - Topic 8204 ].

Landlord and Tenant - Topic 8204

Fixtures and personalty - Trade fixture - What constitutes - The Nova Scotia Supreme Court stated that "a fixture is a thing so attached to realty that it is deemed to be a part of the realty. It must have been attached for a permanent purpose with the intention of remaining perma­nently attached. Trade fixtures are different only in degree. ... trade fixtures [are] things which are annexed to the land for the purposes of trade or of domestic con­venience or ornament in so permanent a manner as to become part of the land and yet the tenant, who had [erected] them, is entitled to remove them during his term, or, even within a reasonable time after its expiration. When severed from the realty, fixtures of a chattel nature cease to be fixtures and resume their character as chattels. They may be removed provided that removal is effected without serious injury to the realty. It is a question of fact in each case whether a thing is a fixture which cannot be severed or is a fixture of a chattel nature which can be severed." - See paragraph 28.

Landlord and Tenant - Topic 8708

Distress - Loss of right of distress - A third party who claimed ownership of distrained chattels submitted that the land­lord lost its right of distress where it had the locks changed on the premises where the distress was effected - The Nova Scotia Supreme Court rejected the sub­mission, where the notice of distress clear­ly stated that the tenant's rights would continue to be recognized, that the tenant may, upon request, re-enter the premises and be permitted to continue to occupy and use the premises, with the right to replevy the chattels upon payment of rent arrears plus costs and charges - See para­graph 27.

Landlord and Tenant - Topic 8766

Distress - Goods not liable to distress - Goods owned by third parties - A landlord distrained a tenant's chattels and equipment following nonpayment of rent - A third party claimed ownership of the chattels and equipment under a bill of sale from a bank which obtained title in executing on two chattel mortgages given by a previous owner of the chattels - The Nova Scotia Supreme Court determined which chattels and equipment were proved to be owned by the third party and were therefore exempt from distress - The court awarded the third party $1,000 damages for wrong­ful distress of those chattels.

Landlord and Tenant - Topic 8806

Distress - Relief or bars to distress - Termination, forfeiture and re-entry - [See Landlord and Tenant - Topic 8708 ].

Landlord and Tenant - Topic 8810

Distress - Relief or bars to distress - Wrongful distress - Damages - [See Landlord and Tenant - Topic 8766 ].

Cases Noticed:

Port Hawkesbury Industrial Commission v. Cape Nova Boats Ltd. et al. (1991), 105 N.S.R.(2d) 204; 284 A.P.R. 204 (Co. Ct.), refd to. [para. 26].

Country Kitchen Ltd. v. Wabush Enter­prises Ltd. and Les Galaries Saint-Laur­ent Inc. (1981), 35 Nfld. & P.E.I.R. 391; 99 A.P.R. 391; 120 D.L.R.(3d) 358 (Nfld. C.A.), refd to. [para. 27].

Vyas v. Miller, Clarke and McMillan (1988), 83 N.S.R.(2d) 312; 210 A.P.R. 312 (C.A.), refd to. [para. 27].

Commercial Credit Corp. v. Shields (Harry D.) Ltd. (1981), 29 O.R. 106 (H.C.J.), refd to. [para. 27].

Royal Bank of Canada v. Bowport Enter­prises Ltd. (1989), 90 N.S.R.(2d) 336; 230 A.P.R. 336 (T.D.), refd to. [para. 28].

Federal Savings Credit Union v. Alchorn and Dorey (1983), 61 N.S.R.(2d) 217; 133 A.P.R. 217 (T.D.), refd to. [para. 37].

McCall v. Wolff (1885), 13 S.C.R. 130, refd to. [para. 37].

Hovey v. Whiting (1887), 14 S.C.R. 515, refd to. [para. 37].

Price Waterhouse Ltd. v. Royal Trust Corp. of Canada (1987), 78 N.S.R.(2d) 4; 193 A.P.R. 4 (C.A.), refd to. [para. 37].

Bentley, Re (1973), 1 O.R.(2d) 120 (H.C.J.), refd to. [para. 38].

Statutes Noticed:

Bills of Sale Act, R.S.N.S. 1989, c. 39, sect. 2(c) [para. 29]; sect. 5 [para. 35].

Tenancies and Distress for Rent Act, R.S.N.S. 1989, c. 464, sect. 4 [para. 1].

Counsel:

Kent L. Noseworthy, for the applicant;

W. Roger Corkum, for the respondent.

This application was heard on July 27, 1995, at Halifax, N.S., in Chambers, before Nathanson, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 5, 1995.