Bank of Montreal v. House (H.O.) Ltd., (1976) 10 Nfld. & P.E.I.R. 392 (NFCA)

• Judge: Furlong, C.J.N., Morgan and Gushue, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: July 02, 1976
• Jurisdiction: Newfoundland and Labrador
• Citations: (1976), 10 Nfld. & P.E.I.R. 392 (NFCA)

Bk. of Mtrl. v. House Ltd. (1976), 10 Nfld. & P.E.I.R. 392 (NFCA);

    17 A.P.R. 392

MLB headnote and full text

Bank of Montreal v. H.O. House Limited

Indexed As: Bank of Montreal v. House (H.O.) Ltd.

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

July 2, 1976.

Summary:

This case arose out of the plaintiff's claim against the defendant for money owing on various loans. The plaintiff bank brought an action against the defendant and the defendant filed a defence and counterclaim. Before trial the bank applied for and obtained from a judge of the Trial Division a warrant of attachment of certain property of the defendant pursuant to s. 82 of the Judicature Act, R.S.N. 1970, c. 187. The defendant appealed from the order and the plaintiff on a preliminary point objected that such a discretionary order was not reviewable by the appeal court.

The Newfoundland Court of Appeal overruled the objection. The appeal court held that, although normally an appeal court will not interfere with the exercise of discretion by the trial judge, such an order was reviewable to determine whether the trial judge proceeded on correct principles of law and on the pertinent material.

Practice - Topic 8804

Appeals - Function of appeal court - Appeal from discretionary order of trial judge - The trial judge made a discretionary order under s. 82 of the Judicature Act, R.S.N. 1970, c. 187, for the attachment of goods of the defendant before the trial of the plaintiff's action against the defendant - The defendant appealed and the plaintiff objected that no appeal lay from such a discretionary order - The Newfoundland Court of Appeal held that, although normally an appeal court will not interfere with the exercise of discretion by the trial judge, such an order was reviewable to determine whether the trial judge proceeded on correct principles of law and on the pertinent material.

Cases Noticed:

Ex Parte Moore (1883), 27 N.B.R. 229, folld. [para. 7].

Donald Campbell and Company Limited v. Pollack, [1927] A.C. 732, folld. [para. 9].

Civil Service Cooperative Society v. General Steam Navigation Co., [1903] 2 K.B. 756, appld. [para. 9].

Evans v. Bartlam, [1937] A.C. 473, appld. [para. 9].

Statutes Noticed:

Judicature Act, R.S.N. 1970, c. 187, sect. 82 [para. 4].

Counsel:

John Greene, for the plaintiff-respondent;

Derek Green, for the defendant-appellant.

This case was heard before FURLONG, C.J.N., and MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On July 2, 1976, judgment was delivered by the Court of Appeal and the following opinions were filed:

FURLONG, C.J.N. - see paragraph 1.

MORGAN, J.A. - see paragraph 2.

GUSHUE, J.A. - see paragraphs 3 to 10.