Bank of Nova Scotia v. Richards (Bankrupt), (1991) 109 N.S.R.(2d) 192 (TD)

JudgeNathanson, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateApril 16, 1991
JurisdictionNova Scotia
Citations(1991), 109 N.S.R.(2d) 192 (TD)

BNS v. Richards (1991), 109 N.S.R.(2d) 192 (TD);

  297 A.P.R. 192

MLB headnote and full text

The Bank of Nova Scotia (applicant) v. Price Waterhouse Limited, as trustee in bankruptcy of the Estate of Hugh Richards (respondent)

(B.No. 12462)

Indexed As: Bank of Nova Scotia v. Richards (Bankrupt)

Nova Scotia Supreme Court

Trial Division

Nathanson, J.

July 17, 1991.

Summary:

Richards bought a car from the sale pro­ceeds of a chattel which he had used to secure a prior bank loan. Richards then made an assignment in bankruptcy without exe­cuting a chattel mortgage on the car in favour of the bank. Richards delivered the car to the trustee in bankruptcy. The bank applied to the court for relief.

The Nova Scotia Supreme Court, Trial Division, dismissed the application.

Bankruptcy - Topic 402

Property of the bankrupt - Rights of trustee - Richards bought a car and regis­tered it in his wife's name - Richards declared bankruptcy and delivered the car to the trustee in bankruptcy - The trustee sold the car - Richards' bank applied to the court to declare that the trustee never had title to the car - The Nova Scotia Supreme Court, Trial Division, concluded that delivery of the car to the trustee ac­knowledged Richard's title to the car and therefore the trustee acquired title - See paragraphs 1, 6.

Mortgages - Topic 200

Equitable mortgages - General - The Nova Scotia Supreme Court, Trial Divi­sion, defined an equitable mortgage as an agreement for a mortgage intended to be formalized later - The court noted that such a mortgage would be awarded where it would be unconscionable to permit the legal owner to benefit from the property - See paragraph 10.

Mortgages - Topic 209

Equitable mortgages - Enforcement of - Property of the bankrupt - Rights of trustee - A bank released a loan security for Richards to sell to a third party - Richards then purchased a car agreeing to execute a chattel mortgage in favour of the bank - Richards declared bankruptcy without executing the chattel mortgage - The bank applied to the court to award the bank an equitable mortgage - The Nova Scotia Supreme Court, Trial Division, dismissed the application as it was conscionable for the trustee in bankruptcy to keep the proceeds of the sale to benefit creditors - See paragraphs 10 to 11.

Restitution - Topic 61

Unjust enrichment - General - [See Trusts - Topic 2310 ].

Trusts - Topic 2310

Constructive trusts - Circumstances when not imposed - A bank released a loan security for Richards to sell to a third party - Richards then purchased a car and registered it in his wife's name - The bank failed to have a chattel mortgage executed - Richards declared bankruptcy and delivered the car to a trustee in bankruptcy - The trustee sold the car - The bank applied to the court to declare the sale proceeds from the car the subject of a constructive trust - The Nova Scotia Supreme Court, Trial Division, rejected the submission as there was no unjust enrich­ment - See paragraphs 8, 9.

Cases Noticed:

Bellini Manufacturing & Importing Ltd., Re (1981), 32 O.R.(2d) 684; 122 D.L.R. (3d) 472; 37 C.B.R.(N.S.) 209, folld. [para. 9].

Paul, Re (1986), 25 D.L.R.(4th) 145 (Ont. S.C.), folld. [para. 9].

Scott, Re (1963), 40 D.L.R.(2d) 328, folld. [para. 11].

Crichton Enterprises Ltd., Re (1979), 38 N.S.R.(2d) 348; 69 A.P.R. 348, folld. [para. 11].

Smiths' Estates et al., Re (1980), 40 N.S.R.(2d) 707; 73 A.P.R. 707, folld. [para. 11].

Royal Bank of Canada v. First Pioneer Investments Ltd. et al. (1984), 54 N.R. 255; 12 D.L.R.(4th) 1 (S.C.C.), folld. [para. 11].

Price Waterhouse Ltd. v. Royal Trust Corporation of Canada (1987), 78 N.S.R.(2d) 4; 193 A.P.R. 4, folld. [para. 11].

Statutes Noticed:

Bills of Sale Act, R.S.N.S. 1989, c. 39, sect. 2(1)(d), sect. 3 [para. 9].

Authors and Works Noticed:

Jowitt's Dictionary of English Law (2nd Ed. 1977), vol. 1, pp. 711-712 [para. 10].

West's Legal Thesaurus/Dictionary (1985), p. 283 [para. 10].

Counsel:

P.D. Darling and Rebecca Veinott, arti­cling clerk, for the applicant;

D.G. Peverill, for the respondent.

This action was heard on April 16, 1991, at Halifax, N.S., before Nathanson, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on July 17, 1991.

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