Bank of British Columbia v. Turbo Resources Ltd., (1983) 46 A.R. 22 (CA)

JudgeLaycraft, Kerans and Prowse, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateJune 15, 1983
Citations(1983), 46 A.R. 22 (CA);1983 ABCA 160;148 DLR (3d) 598;27 Alta LR (2d) 17;46 AR 22;23 BLR 152;[1983] AJ No 873 (QL)

Bk. of B.C. v. Turbo Resources Ltd. (1983), 46 A.R. 22 (CA)

MLB headnote and full text

Bank of British Columbia v. Turbo Resources Ltd.

(No. 14674)

Indexed As: Bank of British Columbia v. Turbo Resources Ltd.

Alberta Court of Appeal

Laycraft, Kerans and Prowse, JJ.A.

June 15, 1983.

Summary:

A bank brought an action against a guarantor to recover monies owing under the guaranteed loan. The bank had breached two notice provisions in the guarantee agreement. The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, awarded judgment to the bank. The guarantor appealed.

The Alberta Court of Appeal allowed the appeal, holding that the breach of the agreement discharged the guarantor from liability under the guarantee.

Guarantee and Indemnity - Topic 2628

Discharge and other defences of surety - Acts of parties - After default by obligor or principal debtor - Failure of creditor to abide by terms of surety contract - A guarantee called for notice of default and notice of any meetings between the creditor and debtor to be given to the guarantor, allowing it to protect its interests - The bank breached the notice provisions - The debtor defaulted and the bank brought an action against the guarantor for monies owing under the loan - The Alberta Court of Appeal held that the guarantor was discharged from liability, because the breaches went to the "root of the contract" - See paragraphs 21 to 32.

Cases Noticed:

Nares v. Rowles (1811), 14 East 510; 104 E.R. 697, refd to. [para. 25].

Stothert v. Goodfellow (1832), 1 N. & M. 202, refd to. [para. 25].

Massey-Harris Co. v. Baptiste (1915), 9 W.W.R. 149, refd to. [para. 25].

Midland Counties Motor Finance Co. Ltd. v. Slade, [1950] 2 All E.R. 821 (C.A.), refd to. [para. 27].

United Dominions Trust (Commercial) Ltd. v. Eagle Aircraft Services, Ltd., [1968] 1 All E.R. 104, refd to. [para. 28].

Bunge Corporation v. Tradax S.A., [1981] 2 All E.R. 513, refd to. [para. 29].

Reardon Smith Line Ltd. v. Hansen-Tangin, [1976] 1 W.L.R. 989, refd to. [para. 30].

Authors and Works Noticed:

Chitty on Contracts (24th Ed.) art. 4848 [para. 26].

Rowlatt on the Law of Principal and Surety (4th Ed.), p. 114 [para. 24].

Counsel:

D. Chernichen, for appellant;

G.R. Meurin, for respondent.

This case was heard before LAYCRAFT, KERANS and PROWSE, JJ.A., of the Alberta Court of Appeal.

On June 15, 1983, LAYCRAFT, J.A., delivered the following judgment for the Court of Appeal.

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