Farm Credit Canada v. Wolfridge Farm Ltd. et al., (2016) 374 N.S.R.(2d) 193 (CA)

• Judge: Fichaud, Saunders and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 24, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 374 N.S.R.(2d) 193 (CA);2016 NSCA 46

Farm Credit v. Wolfridge Farm Ltd. (2016), 374 N.S.R.(2d) 193 (CA);

    1178 A.P.R. 193

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JN.005

Wolfridge Farm Limited (appellant) v. Farm Credit Canada, John Early and Lydia Early (respondents)

(CA 443239; 443918; 2016 NSCA 46)

Indexed As: Farm Credit Canada v. Wolfridge Farm Ltd. et al.

Nova Scotia Court of Appeal

Fichaud, Saunders and Farrar, JJ.A.

May 31, 2016.

Summary:

Farm Credit Canada (FCC) loaned $87,000 to Wolfridge Farm Ltd. to purchase a property. The loan was secured by a collateral mortgage. Wolfridge Farm Ltd., John Early and Lydia Early were the mortgagors. Wolfridge defaulted. FCC made a demand on its loan and sued to recover the amount due. FCC applied ex parte for an order for foreclosure, sale and possession. Justice Moir granted the order. A decision and order of Justice Chipman amended the order for foreclosure, sale and possession by adding recitals to the order so that FCC's legitimate efforts to recover the monies and costs owed to it on account of the mortgagors' default were not continuously frustrated by the mortgagors' perceived strategy of bidding, but then failing to ever complete the sale transaction, at auction. (see [2015] N.S.R.(2d) Uned. 132). A decision and order of Justice Campbell dismissed a motion brought by Wolfridge which sought to set aside the foreclosure sale ordered by Justice Chipman. Wolfridge appealed from the orders of Justice Chipman and Justice Campbell.

The Nova Scotia Court of Appeal dismissed the appeals with costs to FCC.

Mortgages - Topic 4602

Redemption of mortgage - When available - Farm Credit Canada (FCC) loaned $87,000 to Wolfridge Farm Ltd. to purchase a property - The loan was secured by a collateral mortgage - Wolfridge Farm Ltd., John Early and Lydia Early were the mortgagors - Wolfridge defaulted - FCC made a demand on its loan and sued to recover the amount due - FCC applied ex parte for an order for foreclosure, sale and possession - Justice Moir granted the order - A decision and order of Justice Chipman amended the order for foreclosure, sale and possession by adding recitals to the order so that FCC's legitimate efforts to recover the monies and costs owed to it on account of the mortgagors' default, were not continuously frustrated by the mortgagors' perceived strategy of bidding, but then failing to ever complete the sale transaction, at auction - A decision and order of Justice Campbell dismissed a motion brought by Wolfridge which sought to set aside the foreclosure sale ordered by Justice Chipman - Wolfridge appealed from the orders of Justice Chipman and Justice Campbell - The Nova Scotia Court of Appeal dismissed the appeals - Justice Chipman did not err in refusing to stay or set aside the order of Justice Moir, or by adding recitals to it - There was no merit to Wolfridge's complaint that Justice Chipman erred by failing or refusing to deal with its attempt to exercise its equity of redemption - The mortgagors never filed a proper motion seeking a redemption order, or asking the court to abridge filing deadlines in order to hear their motion for a redemption order, prior to the foreclosure auction - The court also rejected Mr. Early's submission that Justice Chipman failed to appreciate the fact that the Earlys had delivered a cheque to FCC's counsel which they thought was sufficient to repay the debt occasioned by their arrears and stop the sale - If Wolfridge intended to redeem the property prior to the foreclosure sale, it was required to pay the full amount due on the mortgage plus costs prior to the sale - Finally, Justice Campbell did not err in dismissing Wolfridge's attempt to set aside the foreclosure sale held on August 7, 2015 - Justice Campbell was correct when he rejected Wolfridge's argument that it still had the right to redeem, notwithstanding the sale of the property.

Mortgages - Topic 4606

Redemption of mortgage - General principles - Period during which right may be exercised - [See Mortgages - Topic 4602 ].

Mortgages - Topic 4619

Redemption of mortgage - General principles - Amount required to redeem - [See Mortgages - Topic 4602 ].

Mortgages - Topic 4690

Redemption of mortgage - Time for redemption - After mortgage sale - [See Mortgages - Topic 4602 ].

Mortgages - Topic 5510

Mortgage actions - Action for foreclosure and sale - Foreclosure order - Content - [See Mortgages - Topic 4602 ].

Mortgages - Topic 5513

Mortgage actions - Action for foreclosure and sale - Foreclosure order - Amending, staying or vacating - [See Mortgages - Topic 4602 ].

Counsel:

John T. Early, III, as agent and vice-president, for the appellant;

Jeffrey P. Flinn and Kilian J. Schlemmer (Law Student), for the respondent, Farm Credit Canada;

Respondents John Early and Lydia Early, unrepresented.

These appeals were heard on May 24, 2016, at Halifax, N.S., before Fichaud, Saunders and Farrar, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on May 31, 2016.