Citibank Canada v. Calgary Auto Centre, (1989) 98 A.R. 250 (QB)

• Judge: D.C. McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 26, 1989
• Citations: (1989), 98 A.R. 250 (QB)

Citibank Can. v. Calgary Auto Centre (1989), 98 A.R. 250 (QB)

MLB headnote and full text

Citibank Canada (plaintiff) v. Calgary Auto Centre (defendant)

(Action No. 8801-12923)

Citibank Canada (plaintiff) v. Western Securities Limited (defendant)

(Action 8801-12922)

Indexed As: Citibank Canada v. Calgary Auto Centre

Alberta Court of Queen's Bench

Judicial District of Calgary

D.C. McDonald, J.

April 26, 1989.

Summary:

A mortgagee applied for the court to appoint a receiver to collect rents being received by two mortgagors on several commercial premises.

A Master of the Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, allowed the application. The mortgagors appealed.

The Alberta Court of Queen's Bench dismissed the appeal, except for varying the Master's order to provide that the receiver hold the rents in trust instead of paying them to the mortgagee.

Receivers - Topic 1726

Appointment - By court - When granted - A mortgagee applied for a court-appointed receiver to collect rents receivable by two mortgagors - Section 45(1) of the Law of Property Act and s. 13(2) of the Judicature Act required that the appointment be "just and equitable" and "just or convenient" - The Alberta Court of Queen's Bench held that there was no general rule that a receiver would not be appointed where the mortgagors had sufficient equity to satisfy the debt - The court held that it was just and equitable to appoint a receiver to preserve the rents and prevent a sale of the properties; the order would not irreparably harm the mortgagors - The court ordered that the rents be held in trust for the party entitled to them at the conclusion of litigation.

Cases Noticed:

R. v. Miller and Cockriell (1977), 11 N.R. 386; 31 C.C.C.(2d) 177 (S.C.C.), refd to. [para. 20].

N.A. Properties Ltd. v. Ronald J. Young Professional Corporation and Gower (1982), 20 Alta. L.R.(2d) 399, disagreed with [para. 22].

Macotta Co. of Canada Ltd. v. Condor Metal Fabricators Ltd. (1980), 40 A.R. 408; 35 C.B.R.(N.S.) 144 (Q.B.), refd to. [para. 25].

Madison Development Corporation Ltd. v. Mehra (1981), 40 C.B.R.(N.S.) 180, dist. [para. 27].

Greville v. Fleming (1845), 2 J. and L. 335, dist. [para. 29].

Marshall v. Charteris, [1920] 1 Ch. 520, dist. [para. 29].

Statutes Noticed:

Judicature Act, R.S.A. 1980, c. J-1, sect. 13(2) [para. 15].

Law of Property Act, R.S.A. 1980, c. L-8, sect. 45(1), sect. 45(1.1) [para. 16].

Authors and Works Noticed:

Bennett on Receiverships, p. 91 [para. 31].

Halsbury's Laws of England (4th Ed.), p. 408 [para. 36].

Kerr on Receivers (7th Ed.), p. 7 [para. 28].

Price and Trussler, Mortgage Actions in Alberta (1985), pp. 308, 309 [paras, 17, 21].

Counsel:

L.R. Duncan, for the plaintiff;

B.R. Crump, for the defendants.

This appeal was heard before D.C. McDonald, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on April 26, 1989.