Ellis et al. v. Island Beach Properties Inc. et al., (1990) 85 Nfld. & P.E.I.R. 35 (PEITD)

• Judge: McQuaid, J.
• Case Date: July 27, 1990
• Jurisdiction: Prince Edward Island
• Citations: (1990), 85 Nfld. & P.E.I.R. 35 (PEITD)

Ellis v. Island Beach Prop. (1990), 85 Nfld. & P.E.I.R. 35 (PEITD);

    266 A.P.R. 35

MLB headnote and full text

Thane Ellis, Wallace MacLeod and Robert Beairsto (plaintiffs/defendants by counterclaim) v. Island Beach Properties Inc. (defendant/plaintiff by counterclaim), John Ramsay, David Riley, Mary Ramsay, George Riley, Elsa Riley, Dana Coulson (defendants) and John Ramsay (third party)

(No. GSS-2405)

Indexed As: Ellis et al. v. Island Beach Properties Inc. et al.

Prince Edward Island Supreme Court

Trial Division

McQuaid, J.

July 27, 1990.

Summary:

Defendants were registered owners of marketable land in a prime tourist area. The plaintiffs claimed an interest in the land and obtained ex parte a certificate of lis pendens against title. The defendants applied to vacate the lis pendens pursuant to s. 36(6) of the Supreme Court Act.

The Prince Edward Island Supreme Court, Trial Division, allowed the application. The court ordered proceeds of sale of the land paid to the prothonotary pending resolution of the case.

Real Property - Topic 7841

Title - Registration of instruments - Lis pendens - General - The Prince Edward Island Supreme Court, Trial Division, stated that a lis pendens did not constitute a lien or charge on the land but merely a cloud on the title - A lis pendens filed quite properly in respect to an interest in land could not be extended to encompass alternative or supplementary remedies corollary thereto, such as claims for breach of contract or for tort, joined in the same proceeding - See paragraphs 12 to 15.

Real Property - Topic 7856

Title - Registration of instruments - Lis pendens - Vacating of - On terms - The defendants were registered owners of marketable land in a prime tourist area - They applied to vacate a certificate of lis pendens obtained ex parte by the plaintiffs - The Prince Edward Island Supreme Court, Trial Division, stated that s. 36(6) of the Supreme Court Act provided for equitable remedies - Where the litigation would be complex and prolonged and it was in the interests of all parties to proceed to market the land, the court ordered vacating of the certificate and the proceeds of sale held by the prothonotary pending resolution of the issues.

Cases Noticed:

Penner's Construction Ltd. v. Ancel et al. (1979), 2 Man.R.(2d) 197; 106 D.L.R.(3d) 634, refd to. [para. 10].

Statutes Noticed:

Supreme Court Act, R.S.P.E.I. 1988, c. S-10, sect. 36 [para. 2]; sect. 36(6) [paras. 2, 6].

Authors and Works Noticed:

di Castri, Law of Vendor and Purchaser (3rd Ed.), para. 524 et seq. [para. 12].

Halsbury's Laws of England (2nd Ed.), vol. 19, p. 345 [para. 5].

Counsel:

Patrick L. Aylward, for the plaintiffs/defendants by counterclaim;

John A. McQuaid, Q.C., for the defendant/plaintiff by counterclaim.

This application was heard in Chambers before McQuaid, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judgment on July 27, 1990.