Coopers & Lybrand Ltd. v. Profile United Industries Ltd., (1987) 79 N.B.R.(2d) 62 (CA)

• Judge: Stratton, C.J.N.B., Ryan and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 28, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 79 N.B.R.(2d) 62 (CA)

Coopers & Lybrand v. Profile United (1987), 79 N.B.R.(2d) 62 (CA);

    79 R.N.-B.(2e) 62; 201 A.P.R. 62

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Profile United Industries Limited (defendant-appellant) v. Coopers & Lybrand Limited (plaintiff-respondent)

281/84/CA

Indexed As: Coopers & Lybrand Ltd. v. Profile United Industries Ltd.

Répertorié: Coopers & Lybrand Ltd. v. Profile United Industries Ltd.

New Brunswick Court of Appeal

Stratton, C.J.N.B., Ryan and Angers, JJ.A.

April 28, 1987.

Summary:

Résumé:

A trustee in bankruptcy applied to set aside a payment by a bankrupt company to a related company. The trial court held that the trustee was entitled to judgment for $262,945 against the related company. The decision of the trial court is not reported in this series of reports. The related company appealed.

The New Brunswick Court of Appeal held that the trustee was entitled to judgment for $262,945 against the related company.

Bankruptcy - Topic 7323

Setting aside transactions prior to bankruptcy - Settlements - Settlement defined - The New Brunswick Court of Appeal referred to a definition of "settlement" for purposes of s. 69 of the Bankruptcy Act (see paragraphs 8 to 12) - The court stated that a payment was not a "settlement" where the payee had no intention of retaining the funds it received (see paragraph 14).

Fraud and Misrepresentation - Topic 1403

Fraudulent conveyances and preferences - Impeachable conveyances and preferences under Statute of Elizabeth (1571) - Intention required - A fish processor sold its assets and then transferred its funds to a related company - The New Brunswick Court of Appeal held that the transfer of funds was an impeachable preference as against a creditor of the fish processor - The court held that there was a shared intention by the fish processor and the related company to delay, hinder or defraud the creditor (see paragraph 29).

Words and Phrases

Settlement - The New Brunswick Court of Appeal discussed the meaning of the word "settlement" as found in s. 69 of the Bankruptcy Act (see paragraphs 8 to 12).

Words and Phrases

Bankrupt - The New Brunswick Court of Appeal discussed the meaning of the word "bankrupt" as found in s. 2 of the Bankruptcy Act (see paragraphs 15 to 19).

Cases Noticed:

Re Bozanich, [1942] S.C.R. 130, refd to. [para. 9].

Re Cohen and Mahlin (1927), 7 C.B.R. 655, refd to. [para. 10].

Re Geraci (1970), 12 D.L.R.(3d) 314 (Ont. C.A.), refd to. [para. 12].

Re Barnett (1983), 43 A.R. 215; 46 C.B.R.(N.S.) 211, refd to. [para. 12].

Re Cyr (1982), 45 C.B.R.(N.S.) 195 (Alta. Q.B.), refd to. [para. 17].

Bank of Montreal v. Crowell (1980), 109 D.L.R.(3d) 442; 37 N.S.R.(2d) 292; 67 A.P.R. 292, refd to. [para. 23].

Bank of Montreal v. Vandine and Taylor (1952), 33 M.P.R. 368 (C.A.), refd to. [para. 23].

Twyne's Case (1602), 3 Rep. 806, refd to. [para. 27].

Statutes Noticed:

Bankruptcy Act, R.S.C. 1970, c. B-3, sect. 69 [para. 7].

Statute of Elizabeth (Fraudulent Conveyances Act), 1571, 13 Eliz. I, c. 5.

Authors and Works Noticed:

Houlden and Morawetz, Bankruptcy Law of Canada, vol. 1, p. F-105 [para. 8].

Waters, Law of Trusts in Canada (1974), p. 255 [para. 11].

Halsbury's Laws of England (3rd. Ed.), vol. 17, paras. 1261 [para. 25]; 1267 [para. 21].

Kerr on Fraud and Mistake (7th Ed. 1952), p. 298 [para. 22].

Counsel:

C. David Hughes, Q.C., for the appellant;

M. Barry Roderick, for the respondent.

This appeal was heard by Stratton, C.J.N.B., Ryan and Angers, JJ.A., of the New Brunswick Court of Appeal on October 17, 1985.

The decision of the Court of Appeal was delivered by Stratton, C.J.N.B., on April 28, 1987. Angers, J.A., concurred with Stratton, C.J.N.B. Ryan, J.A., who died on July 15, 1986, took no part in this decision.