Canadian Imperial Bank of Commerce v. Delta Masonry & Concrete Ltd. and Pfaff, (1985) 65 A.R. 377 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 10, 1985
• Citations: (1985), 65 A.R. 377 (QBM)

CIBC v. Delta Masonry & Concrete (1985), 65 A.R. 377 (QBM)

MLB headnote and full text

Canadian Imperial Bank of Commerce v. Delta Masonry & Concrete Ltd. and Pfaff

(8203 18796)

Indexed As: Canadian Imperial Bank of Commerce v. Delta Masonry & Concrete Ltd. and Pfaff

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

October 10, 1985.

Summary:

The plaintiff creditor applied for determination of whether the sheriff was entitled to deduct storage charges from the sale proceeds of equipment seized from the debtors. A Master of the Alberta Court of Queen's Bench held that the storage charges were deductible from the sale proceeds.

Sheriffs - Topic 1641

Seizures - Under contracts - General - A Master of the Alberta Court of Queen's Bench held that the seizure by a sheriff under a chattel mortgage is an extra judicial function, which the sheriff does not perform as officer of the court but only as agent of the seizing creditor - See paragraph 27 - The Master held that seizure under a chattel mortgage places the goods in custodia legis with a duty of the sheriff to preserve them - See paragraph 35.

Sheriffs - Topic 2645

Fees - Seizures - Storage costs - Deductibility from sale proceeds - A plaintiff creditor instructed the sheriff to seize equipment mortgaged under a chattel mortgage in default, but did not instruct the sheriff to remove and store the equipment - The sheriff seized the equipment on the premises of a third party, but left the equipment in the custody of the third party under a bailee's undertaking - Subsequently, in response to the debtor's concern that the equipment was being used by the bailee, the sheriff removed the equipment and stored it - The creditor submitted that the storage charges were not deductible from the proceeds of the subsequent sale of the equipment by the sheriff - A Master of the Alberta Court of Queen's Bench held that the storage charges were deductible from the sale proceeds.

Cases Noticed:

McCormick v. Haworth, [1929] 1 W.W.R. 129 (Sask. C.A.), appld. [para. 27].

Pickel v. MyKycy, [1939] 2 W.W.R. 232 (Sask. K.B.), appld. [para. 27].

Rankin v. Bell, [1923] 2 W.W.R. 922 (B.C.C.C.), consd. [para. 28].

Young v. Dencher, [1923] 1 W.W.R. 136 (Alta. C.A.), consd. [para. 34].

Fabbi v. Crustal Dairy (1963), 43 W.W.R.(N.S.) 552 (Alta. S.C.), appld. [para. 35].

Melton Real Estate v. National Arts Services Corporation (1977), 6 A.R. 577; 2 Alta. L.R.(2d) 180 (D.C.), appld. [para. 35].

General Motors Acceptance Corporation v. White, [1973] 3 W.W.R. 572 (Alta. C.A.), appld. [para. 43].

Statutes Noticed:

Seizures Act, R.S.A. 1980, c. S-11, sect. 16 [paras. 34, 38]; sect. 18 [para. 26]; sect. 25(2) [para. 34]; sect. 31(1) [paras. 37, 39].

Counsel:

Lucas, Bishop & Co., for the plaintiff;

W.A. McDonald, for the sheriff.

This case was heard at Edmonton, Alberta, before Master Funduk of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 10, 1985: