Brown v. Voszler Estates Ltd. and Nilsson Livestock Ltd., (1991) 112 A.R. 53 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 10, 1991
• Citations: (1991), 112 A.R. 53 (QBM)

Brown v. Voszler Estates Ltd. (1991), 112 A.R. 53 (QBM)

MLB headnote and full text

William H. Brown (plaintiff) v. Voszler's Estates Ltd. and Nilsson Livestock Ltd. (defendants)

Nilsson Livestock Ltd. and Voszler's Estates Ltd. (plaintiffs by counterclaim) v. William H. Brown, Robert Weisenger and Gary Brown (defendants by counterclaim)

(Action No. 9003 14363)

Indexed As: Brown v. Voszler Estates Ltd. and Nilsson Livestock Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

January 10, 1991.

Summary:

A mortgagee applied for summary judgment against the original and subsequent mortgagors. The mortgagee paid outstanding property taxes and penalties after the mortgagors defaulted in their mortgage obligation to do so. The mortgagors counterclaimed for breach of an alleged oral collateral agreement and, inter alia, sought a stay of proceedings.

A Master of the Alberta Court of Queen's Bench interpreted the mortgage and granted summary judgment with an order nisi with directions for sale. The Master also granted summary judgment dismissing the counterclaim.

Contracts - Topic 8405

Collateral agreements - Validity - Mortgagors claimed an oral collateral agreement pre-existed the mortgage - The terms of the alleged collateral agreement conflicted with the express terms of the mortgage - A Master of the Alberta Court of Queen's Bench stated that evidence of the alleged agreement was inadmissible (parol evidence rule) - The Master stated that even if such an agreement existed, it would have no legal effect where it conflicted with the terms of the mortgage - See paragraphs 52 to 70.

Evidence - Topic 6204

Parol evidence rules - Evidence offered to contradict or explain written agreement - [See Contracts - Topic 8405].

Mortgages - Topic 1365

The mortgage - Implied terms - Notice where mortgagee pays outstanding taxes - A mortgage provided that if the mortgagor defaulted in paying property taxes the mortgagee could pay them and was to be repaid forthwith by the mortgagor - The mortgage provided that taxes paid constituted principal secured by the mortgage - The mortgagee paid taxes in arrears and sought summary judgment for the accelerated mortgage balance - The mortgagor argued that the mortgagee could not bring an action until notice of payment was given and the mortgagor was given an opportunity to repay - A Master of the Alberta Court of Queen's Bench rejected the notice requirement - The mortgagor was not entitled to notice absent a term to that effect; such a term (notice) should not be implied - See paragraphs 17 to 51.

Cases Noticed:

Miller v. Canadian Pacific Railway, [1933] 1 W.W.R 233 (Alta. C.A.), refd to. [para. 20].

Jones v. Payne, [1952] O.W.N. 511, disagreed with [para. 29].

Bower v. J.M. Schneider Inc., 9 B.C.L.R.(2d) 145 (C.A.), refd to. [para. 41].

Canadiana Gifts v. Friedman (1981), 32 A.R. 354; 15 Alta. L.R.(2d) 237 (Q.B.), refd to. [para. 41].

Catre Industries Ltd. v. Alberta (1990), 99 A.R. 321 (C.A.), refd to. [para. 41].

Sullivan v. Newsome (1981), 78 A.R. 297 (C.A.), refd to. [para. 41].

Edmonton Savings and Credit Union v. Weir (1988), 86 A.R. 329 (Q.B.), refd to. [para. 47].

Imperial Oil v. Whissell Enterprises (1985), 62 A.R. 321 (Q.B. Master), refd to. [para. 56].

Hawrish v. Bank of Montréal, [1969] S.C.R. 515, refd to. [para. 57].

Marwood Cedar Homes Ltd. v. Hanson Food Processing Ltd. (1988), 86 A.R. 206 (Q.B. Master), refd to. [para. 57].

Statutes Noticed:

Law of Property Act, R.S.A. 1980, c. L-8, sect. 39(1) [para. 76].

Counsel:

R.P. James (Parlee McLaws), for the plaintiff;

B. Kaliel (Corbett & Company), for the defendants.

These applications were heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 10, 1991.