Burdyny v. Dacar Enterprises Ltd. (Bankrupt), (1988) 55 Man.R.(2d) 270 (CA)

• Judge: Hall, Huband and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 23, 1988
• Jurisdiction: Manitoba
• Citations: (1988), 55 Man.R.(2d) 270 (CA)

Burdyny v. Dacar Ent. Ltd. (1988), 55 Man.R.(2d) 270 (CA)

MLB headnote and full text

Kenneth Burdyny Bailiff and Process Service and Pratt, McGarry Inc. (applicants/appellants) v. Touche Ross Limited, Trustee in Bankruptcy of the Estate of Dacar Enterprises Ltd. (respondent/respondent)

(Suit No. 297/88)

Indexed As: Burdyny v. Dacar Enterprises Ltd. (Bankrupt)

Manitoba Court of Appeal

Hall, Huband and Twaddle, JJ.A.

November 29, 1988.

Summary:

A bailiff seized goods of a tenant on behalf of the landlord for nonpayment of rent. The tenant subsequently made an assignment in bankruptcy. The bailiff delivered the distrained goods to the trustee in bankruptcy and claimed from the trustee his costs of the distress pursuant to s. 51(4) of the Bankruptcy Act. The trustee denied that the costs of distress were a first charge on the bankrupt tenant's secured property. The bailiff applied for a declaration that the costs of distress levied by him were a first charge on the secured property.

The Manitoba Court of Queen's Bench, in a decision reported in 53 Man.R.(2d) 169, dismissed the application. The court held that the charge for the costs of distress under s. 51(4) of the Bankruptcy Act applied only to a bankrupt's equity of redemption in secured property. The bailiff and the landlord appealed.

The Manitoba Court of Appeal allowed the appeal.

Bankruptcy - Topic 3645

Creditors - Priorities - Statutory liens and charges - Force and effect of - Costs of distress - A bailiff distrained goods for a landlord - The tenant subsequently made an assignment in bankruptcy - The bailiff claimed his costs of the distress as a first charge on the bankrupt tenant's se cured property under s. 51(4) of the Bankruptcy Act - The Manitoba Court of Appeal held that s. 51(4) was sufficiently specific to displace the rights of the secured creditor respecting the costs of a bailiff in making a landlord's seizure - The court stated that with bankruptcy, the costs of distress become a first charge on the property of the bankrupt.

Landlord and Tenant - Topic 8828

Distress - Priorities - Bankruptcy of tenant - Effect of - [See Bankruptcy - Topic 3645 above].

Cases Noticed:

Board of Industrial Relations v. Avco Financial Realty Ltd. and Homeplan Realty Limited, [1979] 2 S.C.R. 699; 28 N.R. 140, refd to. [para. 6].

Federal Business Development Bank v. Perron et al., [1980] 4 W.W.R. 607; 4 Man.R.(2d) 439, refd to. [para. 6].

Statutes Noticed:

Bankruptcy Act, R.S.C. 1970, c. B-3, sect. 51 [para. 5]; sect. 51(4) [paras. 1, 5, 10-13].

Counsel:

E. Tawkin, for the appellants;

D.R.M. Jackson, for the respondent.

This appeal was heard before Hall, Huband and Twaddle, JJ.A., of the Manitoba Court of Appeal, on November 23, 1988, when the Court of Appeal delivered its decision. On November 29, 1988, Hall, J.A., delivered written reasons for the court.