General Motors Acceptance Corp. of Canada Ltd. v. Mahfouz and Canadian Imperial Bank of Commerce et al., (1984) 67 A.R. 145 (CA)

• Judge: Lieberman, Harradence and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 15, 1984
• Citations: (1984), 67 A.R. 145 (CA)

GMAC v. Mahfouz (1984), 67 A.R. 145 (CA)

MLB headnote and full text

General Motors Acceptance Corporation of Canada Limited v. Mahfouz, O'Brien and Canadian Imperial Bank of Commerce

Appeal No. 15735

Indexed As: General Motors Acceptance Corp. of Canada Ltd. v. Mahfouz and Canadian Imperial Bank of Commerce et al.

Alberta Court of Appeal

Lieberman, Harradence and Kerans, JJ.A.

October 15, 1984.

Summary:

Mahfouz purchased a vehicle. G.M.A.C. took a security interest against the vehicle in 1979 in Ontario, where Mahfouz lived and the vehicle was located. In 1980 Mahfouz took the vehicle to Alberta and gave a security interest to the Canadian Imperial Bank of Commerce (C.I.B.C.) in Alberta. C.I.B.C. originally had no knowledge of G.M.A.C.'s claim. A dispute arose over who had priority to the proceeds of the sale of the vehicle. The Alberta Court of Queen's Bench, in a decision unreported in this series of reports, held that the C.I.B.C. had priority over the claim of G.M.A.C. G.M.A.C. appealed.

The Alberta Court of Appeal allowed the appeal and held that G.M.A.C. had a prior right to the proceeds.

Conditional Sales - Topic 381

Registration - Where goods moved - General - Sections 14(1) and (2) of the Conditional Sales Act (Alberta) together provided, inter alia, that where property was brought into Alberta, an Alberta security holder had priority over an extra-provincial security holder unless the extraprovincial security holder registered its interest in Alberta within 21 days of when the extra-provincial security holder had notice that the property was taken to Alberta - The Alberta Court of Appeal held that the notice required by ss. 14(1) and (2) was actual notice and that there was no duty on the extra-provincial security holder to inquire about the whereabouts of the property.

Conditional Sales - Topic 388

Registration - Where goods moved - Moved into jurisdiction - Priorities - Mahfouz gave G.M.A.C. a security interest on a vehicle in Ontario - Mahfouz moved to Alberta and gave a bank a security interest in the same vehicle - The bank registered its interest - The bank claimed priority under ss. 14(1) and (2) of the Conditional Sales Act, which gave the bank priority unless G.M.A.C. registered its interest in Alberta within 21 days of having notice that the car was taken to Alberta - The Alberta Court of Appeal held that the notice required to give rise to G.M.A.C.'s duty to register in Alberta was "actual notice" and since G.M.A.C. had no such notice, it did not loose its priority by failing to register within the 21 days.

Words and Phrases

Notice - The Alberta Court of Appeal discussed the meaning of word as it appeared in s. 14(2) of the Conditional Sales Act, R.S.A. 1980, c. C-21.

Cases Noticed:

G.M.A.C. v. Prestie and Shable, [1972] 3 W.W.R. 534 (Alta. D.C.), refd to. [para. 6].

Pozdnekoff v. Royal Bank (1979), 34 N.S.R.(2d) 435; 59 A.P.R. 435; 96 D.L.R.(3d) 627 (N.S.S.C.), refd to. [para. 6].

Manchester Trust v. Furnes, [1895] 2 Q.B. 539, refd to. [para. 7].

Allis-Chalmers Credit et al. v. Leons Manufacturing, [1983] 4 W.W.R. 230, refd to. [para. 9].

Terra Power Tractor Co. Ltd. v. Chapman (1977), 5 A.R. 286; 2 Alta. L.R.(2d) 247 (Alta. D.C.), refd to. [para. 9].

Eldon's Sup. Fresh Stores, Inc. v. Merrill Lynch etc., 207 N.W.(2d) 282, refd to. [para. 10].

Statutes Noticed:

Conditional Sales Act, R.S.A. 1980, c. C-21, sect. 14(1), sect. 14(2).

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 14, para. 1022 [para. 7].

Counsel:

F. Zinkhofer, for the appellant;

Sandra Hardy, for the respondent.

This appeal was heard before Lieberman, Harradence and Kerans, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered orally from the bench for the court by Kerans, J.A., on October 15, 1984: