Gottlieb (David M.) Professional Corp. et al. v. Nahal,

• Judge: O'Ferrall,Park,Slatter
• Neutral Citation: 2012 ABCA 88
• Citation: 2012 ABCA 88,(2012), 522 A.R. 25,522 AR 25,(2012), 522 AR 25,522 A.R. 25
• Date: 12 October 2011
• Court: Court of Appeal (Alberta)

Gottlieb Prof. Corp. v. Nahal (2012), 522 A.R. 25; 544 W.A.C. 25 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.134

David M. Gottlieb, Professional Corporation and Swiss Investments Inc. (appellants/plaintiffs/respondents) v. Satpal Singh Nahal (respondent/defendant/applicant)

(1101-0152-AC; 2012 ABCA 88)

Indexed As: Gottlieb (David M.) Professional Corp. et al. v. Nahal

Alberta Court of Appeal

Slatter and O'Ferrall, JJ.A., and Park, J.(ad hoc)

March 19, 2012.

Summary:

Mortgagees commenced a foreclosure action. The mortgagor did not defend and was noted in default. The mortgagees obtained an Order Nisi/Order for Sale. The court received an offer to buy the mortgaged property. An Order Confirming Sale was made. The formal Order Confirming Sale did not contain a statement of the amount due and owing on the mortgage and it provided that the dispute over calculating interest was to be resolved by agreement or further court order. The mortgagor applied to set aside the noting in default to permit a limitations defence to be filed. A Master held that the application to set aside the noting in default was premature, because the mortgagor had not appealed the Order Nisi/Order for Sale. The mortgagor appealed the Order Nisi/Order for Sale, and the Master's ruling that the application to set aside the noting in default was premature. The Order Confirming Sale had previously been appealed. Before the appeals were heard, the property was sold.

The Alberta Court of Queen's Bench (the chambers judge), in a decision reported at [2011] A.R. Uned. 762, dismissed the appeals of the Order Nisi/Order for Sale and the Order Confirming Sale. However, the chambers judge concluded that the mortgagor was entitled to bring an application to have the noting in default set aside and he heard the merits of the application. The chambers judge granted the application, and gave the mortgagor leave to file a defence to the foreclosure action on terms, which included that there would be no recourse to the property itself. The mortgagees appealed.

The Alberta Court of Appeal dismissed the appeal.

Mortgages - Topic 5507.1

Mortgage actions - Action for foreclosure and sale - Foreclosure order - Setting aside order in default of defence - Mortgagees commenced a foreclosure action - The mortgagor did not defend and was noted in default - The mortgagees obtained an Order Nisi/Order for Sale - The court received an offer to buy the property - An Order Confirming Sale was made - The formal Order Confirming Sale did not contain a statement of the amount due and owing on the mortgage and it provided that the dispute over calculating interest was to be resolved by agreement or further court order - The mortgagor applied to set aside the noting in default to permit a limitations defence to be filed - A Master held that the application to set aside the noting in default was premature, because the mortgagor had not appealed the Order Nisi/Order for Sale - The mortgagor appealed the Order Nisi/Order for Sale, and the Master's ruling that the application to set aside the noting in default was premature - The Order Confirming Sale had previously been appealed - Before the appeals were heard, the property was sold - A chambers judge dismissed the appeals of the Order Nisi/Order for Sale and of the Order Confirming Sale - However, he concluded that the mortgagor was entitled to bring an application to have the noting in default set aside - The chambers judge granted the application, and gave the mortgagor leave to file a defence to the foreclosure action on terms, which included that there would be no recourse to the property itself - The mortgagees appealed - The Alberta Court of Appeal dismissed the appeal - By the time the matter reached the chambers judge, the in rem portion of the claim had proceeded to finality - The chambers judge did not permit the mortgagor to defend the in rem claim - He simply permitted a defence to be filed in the in personam action that claimed that the mortgagor was still liable for the payments under the mortgage - It was possible to set aside the noting in default with respect to the in personam remedy, without disturbing the orders that had been given with respect to the in rem remedy.

Practice - Topic 6202

Judgments and orders - Setting aside default judgments (incl. noting in default) - On terms - [See Mortgages - Topic 5507.1 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 9].

Widneyer v. Atlantic Pipe Resources Inc. (2000), 183 N.S.R.(2d) 164; 568 A.P.R. 164; 2000 NSCA 22, refd to. [para. 9].

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225; 66 Alta. L.R.(4th) 231; 2006 ABCA 337, refd to. [para. 9].

Peters v. Remington (2004), 339 A.R. 326; 312 W.A.C. 326; 20 Alta. L.R.(4th) 1; 2004 ABCA 5, refd to. [para. 9].

Webmor Financial Services Ltd. v. Drummond (James M.) Holdings Ltd. et al. (1981), 33 A.R. 493 (Q.B. Master), refd to. [para. 10].

C.I.B.C. Mortgage Corp. v. Nighswander and Nighswander (1988), 90 A.R. 207 (Q.B. Master), refd to. [para. 10].

Alberta (Treasury Branches) v. Naber (1994), 161 A.R. 393 (Q.B. Master), refd to. [para. 10].

Anko Investments Ltd. v. C.C.I.B. Mortgage Investment Corp. of Alberta (1987), 81 A.R. 26 (Q.B. Master), refd to. [para. 10].

Jones v. Owners - Condominium Plan No. 7510189 (1997), 196 A.R. 3; 141 W.A.C. 3 (C.A.), dist. [para. 16].

Royal Bank of Canada v. Got (W.) & Associates Electric Ltd. et al., [1997] 6 W.W.R. 715; 196 A.R. 241; 141 W.A.C. 241 (C.A.), consd. [para. 17].

Fas Gas Oil Ltd. et al. v. J.H. Automotive Ltd. (2004), 348 A.R. 65; 321 W.A.C. 65; 31 Alta. L.R.(4th) 197; 2004 ABCA 120, refd to. [para. 19].

Counsel:

J.D. Burke and D. Nash, for the appellants;

A.H. Wenngatz, for the respondent.

This appeal was heard on October 12, 2011, before Slatter and O'Ferrall, JJ.A., and Park, J.(ad hoc), of the Alberta Court of Appeal. The Court of Appeal filed the following memorandum of judgment on March 19, 2012.