Bank of Montreal v. Crowell and Crowell, (1980) 37 N.S.R.(2d) 292 (TD)

• Judge: Hallett, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 19, 1980
• Jurisdiction: Nova Scotia
• Citations: (1980), 37 N.S.R.(2d) 292 (TD);1980 CanLII 2613 (NS SC);109 DLR (3d) 442;34 CBR (ns) 15;37 NSR (2d) 292;67 APR 292

Bk. of Mtrl. v. Crowell (1980), 37 N.S.R.(2d) 292 (TD);

    67 A.P.R. 292

MLB headnote and full text

Bank of Montreal v. Crowell and Crowell

(S.T. No. 00923)

Indexed As: Bank of Montreal v. Crowell and Crowell

Nova Scotia Supreme Court

Trial Division

Hallett, J.

February 19, 1980.

Summary:

This case arose out of an application by a creditor to set aside a conveyance under the Statute of Elizabeth. Payments on promissory notes signed by the debtor husband were in arrears. The husband transferred his joint interest in his house and his interest in his car to his wife. The husband was left without sufficient property to satisfy his debts. The creditor argued that the Statute of Elizabeth applied because (1) the husband did not receive any valuable consideration for the conveyances, (2) the husband's intention was to delay or defeat his creditor and (3) the conveyances did effectively delay and defeat his creditor. The Nova Scotia Supreme Court, Trial Division, allowed the creditor's application and held the conveyances void under the Statute of Elizabeth.

Fraud and Misrepresentation - Topic 1204

Fraudulent conveyances - General principles - Statute of Elizabeth - Where in force - The Nova Scotia Supreme Court, Trial Division, held that the Statute of Elizabeth was in force in Nova Scotia despite its repeal in England and the coming into force of the Assignment and Preferences Act in Nova Scotia - The Trial Division held that the Statute of Elizabeth and Assignment and Preferences Act dealt with the same matter, but the latter did not impliedly repeal the former because their were no inconsistencies or repugnancies.

Fraud and Misrepresentation - Topic 1404

Fraudulent conveyances - Impeachable under Statute of Elizabeth - Presumption of intention to defraud - The Nova Scotia Supreme Court, Trial Division, held that a fraudulent intention would be imputed to a grantor, if at the time of a conveyance of property the grantor was a debtor; no consideration was received for the conveyance and the effect of the conveyance was to denude the grantor of substantially all his property that would have been available to satisfy his debts - See paragraph 27.

Fraud and Misrepresentation - Topic 1406

Fraudulent conveyances - Impeachable under Statute of Elizabeth - Conditions precedent to setting aside conveyance - The Nova Scotia Supreme Court, Trial Division, held that a conveyance by a debtor would be set aside if his creditors proved (1) that no valuable consideration was received for the conveyance, (2) that the debtor intended to delay or defeat his creditors and (3) that the conveyance effectively delayed or defeated the creditors - See paragraph 27.

Fraud and Misrepresentation - Topic 1402

Fraudulent conveyances - Impeachable under Statute of Elizabeth - Scope of statute - The Nova Scotia Supreme Court, Trial Division, held that a fraudulent conveyance made by a solvent person could be set aside under the Statute of Elizabeth - See paragraph 19.

Cases Noticed:

Liberty Mutual Insurance Co., Fuhrer and Fuhrer v. MacDonald and MacDonald (1978), 26 N.S.R.(2d) 396; 40 A.P.R. 396 (S.C.T.D.), refd to. [para. 13].

Royal Bank of Canada v. Kirkpatrick (1977), 20 N.S.R.(2d) 458; 27 A.P.R. 458, refd to. [para. 14 and 29].

Emberley v. Wambolt (1941-43), 16 M.P.R. 224, refd to. [para. 15].

Hayward v. McKay et al. (1895), 28 N.S.R. 152, refd to. [para. 15].

Doull et al. v. Linton et al. (1884-86), 18 N.S.R. 38 (C.A.), refd to. [para. 15].

Clarke v. Fullerton (1869-72), 8 N.S.R. 348, refd to. [para. 15].

Uniacke v. Dickson et al. (1853-55), 2 N.S.R. 286, refd to. [para. 22].

Bank of Montreal v. Reis and Huiras, [1925] 3 D.L.R. 125, refd to. [para. 22].

Leighton v. Muir (1962), 34 D.L.R.(2d) 332, refd to. [para. 23].

Sun Life Assurance Company of Canada v. Elliott (1900-01), 31 S.C.R. 91, refd to. [para. 24].

Traders Group Ltd. v. Mason et al. (1974), 43 D.L.R. (3d) 76, refd to. [para. 24].

Freeman v. Pope, 5 Ch. App. 538, refd to. [para. 25].

Rimco Limited v. Leon Developments Limited (1973), 4 N.S.R.(2d) 592, refd to. [para. 26].

Cromwell v. Comeau (1957), 8 D.L.R.(2d) 676, refd to. [para. 27].

McGillan v. McGillan, (1947] 4 D.L.R. 456, refd to. [para. 30].

Statutes Noticed:

Statute of Elizabeth, 1570 (Imp.), 13 Eliz., c. 5.

Assignment and Preferences Act, R.S.N.S. 1967, c. 16 [para. 13].

Authors and Works Noticed:

Kerr on Fraud and Mistake (7th Ed.), pp. 298 [para. 11]; 299 [para. 18].

Craies on Statute Law (7th Ed.), p. 366 [para. 22].

Counsel:

J. Mark McCrea, for the plaintiff;

Melinda J. MacLean, for the defendants.

This case was heard on January 25 and 28, 1980, by HALLETT, J., of the Nova Scotia Supreme Court, Trial Division.

On February 19, 1980, HALLETT, J., delivered the following judgment: