Factory Window and Door Ltd. (Bankrupt), Re, (1995) 135 Sask.R. 235 (QB)

• Judge: Geatros, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 14, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 135 Sask.R. 235 (QB)

Factory Window & Door (Bkpt.), Re (1995), 135 Sask.R. 235 (QB)

MLB headnote and full text

In The Matter Of the Bankruptcy of Factory Window & Door Ltd.

Duraco Window Industries (Sask.) Ltd. (applicant) v. Coopers, Lybrand, trustee (respondent) and Factory Window and Door Ltd. (the bankrupt/respondent)

Indexed As: Factory Window and Door Ltd. (Bankrupt), Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Geatros, J.

August 14, 1995.

Summary:

A customer of a window manufacturer went bankrupt. The manufacturer claimed that money in the bankrupt's bank account was money held in trust for the manu­facturer. The trustee in bankruptcy argued that the money was property of the bankrupt.

The Saskatchewan Court of Queen's Bench dismissed the manufacturer's claim and held that the money was the property of the bankrupt.

Bankruptcy - Topic 428

Property of bankrupt - Particular property - Deposits - [See Bankruptcy - Topic 488 ].

Bankruptcy - Topic 488

Property of bankrupt - Exemptions or exclusions - Trust property - A manufac­turer supplied custom-made windows to a building contractor - The contractor deposited the payments it received for installed windows into its bank account - The contractor went bankrupt - The man­ufacturer claimed that the bank account was a statutory trust under the Builders' Lien Act and, accordingly, was property held in trust for the manufacturer under the Bankruptcy and Insolvency Act, s. 67(1)(a) - The Saskatchewan Court of Queen's Bench stated that s. 67(1)(a) was confined to trust arising under general principles of law and did not apply to trust established by provincial legislation, - No trust arose under general principles of law, where there was no intention to create a trust - Accordingly, the bank account was the property of the bankrupt available for distribution among the creditors generally.

Cases Noticed:

British Columbia v. Henfrey Samson Be­lair Ltd., [1989] 2 S.C.R. 24; 97 N.R. 61; [1989] 5 W.W.R. 577, appld. [para. 8].

Husky Oil Operations Ltd. v. Minister of National Revenue et al., [1994] 1 W.W.R. 629; 116 Sask.R. 46; 59 W.A.C. 46 (C.A.), appld. [para. 9].

Workers' Compensation Board v. Husky Oil Operations Ltd. - see Husky Oil Operations Ltd. v. Minister of National Revenue et al.

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 67(1), sect. 71(2) [para. 4].

Builders' Lien Act, S.S. 1984-85-86, c. B-7.1, sect. 7, sect. 8 [para. 5].

Counsel:

W.H. Holliday, for the applicant;

P.A. Quaroni, for the respondent trustee.

This application was heard before Geatros, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on August 14, 1995.