Bond v. McIntyre et al., (1992) 128 A.R. 40 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 04, 1992
• Citations: (1992), 128 A.R. 40 (QBM)

Bond v. McIntyre (1992), 128 A.R. 40 (QBM)

MLB headnote and full text

Harold C. Bond (plaintiff) v. Ian McIntyre, Lake Eden Properties Ltd. and Eden Lake Golf and Country Club Ltd. (defendants)

(9103 21340)

Indexed As: Bond v. McIntyre et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

March 4, 1992.

Summary:

An unpaid conditional seller sought replevin to repossess the property he had sold. A Chambers judge dismissed the appli­cation and declared that the seller's proper remedy was a seizure. However, the judge pro­hi­bited the seller from removing the seized pro­perty until he got another order from the court. The seller seized the property and applied for the order recommended by the Chambers judge. A debenture holder claimed priority and disputed the seller's right to seize the pro­perty.

The Alberta Court of Queen's Bench granted the order.

Conditional Sales - Topic 1010

Rights of third parties - Loss of title to subsequent purchasers - Resale to bona fide purchaser for value without notice - In December 1989, Bond conditionally sold a machine to McIntyre - In January 1990, McIntyre resold it to Lake Eden, a company he controlled - Lake Eden was the debtor under a debenture held by Tsui and dated November 1989 - In October 1990, Eden Lake, another company, bought Lake Eden's shares and Tsui's debenture - Unpaid, Bond sought seizure and removal of the machine - Eden Lake claimed priority under its debenture - The Alberta Court of Queen's Bench held that Bond had priority and granted the order he sought - The court added that the sale from McIntyre to Lake Eden was not a sale in good faith - See paragraphs 38 to 79, 82 to 86.

Personal Property - Topic 6204

Security interests - Priorities - Debentures - In December 1989, Bond conditionally sold a machine to McIntyre - In January 1990, McIntyre resold it to Lake Eden, a company he controlled - Lake Eden was the debtor under a debenture held by Tsui and dated November 1989 - In October 1990, Eden Lake, another company, bought Lake Eden's shares and Tsui's debenture - Unpaid, Bond sought seizure and removal of the machine - Eden Lake claimed priority under its debenture - The Alberta Court of Queen's Bench held that Bond had priority and granted the order he sought - See paragraphs 38 to 72, 82 to 86.

Replevin - Topic 601

When available - General - In December 1989, Bond conditionally sold a machine to McIntyre - In January 1990, McIntyre resold it to Lake Eden, a company he controlled - Lake Eden was the debtor under a debenture held by Tsui and dated November 1989 - In October 1990, Eden Lake, another company, bought Lake Eden's shares and Tsui's debenture - Unpaid, Bond sought replevin - A Cham­bers judge dismissed the application, said that seizure was Bond's proper remedy but prohibited Bond from removing the machine until he got another court order - He applied for and got his order - The Alberta Court of Queen's Bench discussed Bond's remedy situation - See paragraphs 27 to 37, 82 to 86.

Cases Noticed:

Edmonton Savings and Credit Union v. Weir (1988), 86 A.R. 329 (Q.B.), affd. C.A. 8803-0505, May 5, 1989, refd to. [para. 2].

Ramsey v. Pioneer Machinery Co. Ltd., 15 Alta. L.R.(2d) 140 (C.A.), refd to. [para. 11].

Canadian Acceptance Corp., Re (1977), 6 A.R. 56; 2 Alta. L.R.(2d) 377 (D.C.), refd to. [para. 30].

O'Brien v. Stebbins (1927), 2 W.W.R. 176 (Sask. C.A.), refd to. [para. 42].

Moses v. Bank of Montreal (1983), 40 A.R. 441; 19 Alta. L.R.(2d) 67 (Q.B.), refd to. [para. 42].

T. & C. Track Service and Welding v. Henning (1981), 30 A.R. 164 (Q.B.), refd to. [para. 42].

Caisse populaire de Morinville Savings and Credit Union v. Den-Lou Holdings (1983), 47 A.R. 363 (M.), refd to. [para. 45].

Plaza Equities Ltd. and Winnipeg Mort­gage Holdings Ltd. v. Bank of Nova Scotia, [1978] 3 W.W.R. 385; 11 A.R. 480 (S.C.), refd to. [para. 52].

W.C. Fast Enterprises v. All-Power Sports (1973) Ltd. (1981), 29 A.R. 483; 16 Alta. L.R.(2d) 47 (C.A.), consd. [para. 52].

C.N. Credit Union v. Alberta Treasury Branch and Ramoudit (1987), 83 A.R. 247; 53 Alta. L.R.(2d) 167 (M.), consd. [para. 68].

W.C.B. v. Provincial Treasurer (1967), 59 W.W.R. 298 (Alta. C.A.), not folld. [para. 70].

Toronto-Dominion Bank v. Associated Decorators (1980), 23 A.R. 583 (Q.B.), not folld. [para. 70].

Delton Cabinet Mfg. v. Derejko Homes, 82 Alta. L.R.(2d) 183 (Q.B.), refd to. [para. 77].

C.N. Credit Union and Toronto-Dominion Bank v. Avco Financial Services Canada, 55 Alta. L.R.(2d) 181 (Q.B.), refd to. [para. 77].

C.N. Credit Union and I.T.T. Commercial Fin. v. Co-op Centre Credit Union, 59 Alta. L.R.(2d) 39 (C.A.), refd to. [para. 78].

Statutes Noticed:

Bills of Sale Act, R.S.A. 1980, c. B-5, sect. 2(1)(b) [para. 77].

Conditional Sales Act, R.S.A. 1980, c. C-21, sect. 2(1) [para. 50]; sect. 2(1)(a) [paras. 54, 57, 71, 77]; sect. 2(1)(b) [para. 54].

Personal Property Security Act, S.A. 1988, c. P-4.05, sect. 58, sect. 58(10) [para. 31]; sect. 74 [para. 49].

Rules of Court (Alta.), rule 159 [para. 28].

Counsel:

E. You (Emery, Jamieson & Assoc.), for the plaintiff;

J. Vaage (Ogilvie & Company), for Eden Lake Golf and Country Club Ltd.

This application was heard by Funduk, Master in Chambers, of the Alberta Court of Queen's Bench.

Master Funduk delivered the following decision on March 4, 1992.