Heritage Village Holdings Ltd. v. Moviestar CD & Video Entertainment Inc., (1995) 171 A.R. 36 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 17, 1995
• Citations: (1995), 171 A.R. 36 (QBM)

Heritage Vil. Hldgs. v. Moviestar CD (1995), 171 A.R. 36 (QBM)

MLB headnote and full text

Heritage Village Holdings Ltd. (applicant) v. Moviestar CD & Video Entertainment Inc. (respondent)

(Action No. 9503-07821)

Indexed As: Heritage Village Holdings Ltd. v. Moviestar CD & Video Entertainment Inc.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

May 17, 1995.

Summary:

A tenant purchased merchandise from TSC. The landlord distrained all goods on the premises, including unpaid for merchan­dise which TSC claimed was purchased under a conditional sales agreement. The landlord applied under s. 29(8) of the Seiz­ures Act for the court to summarily decide the issue of ownership.

A Master of the Alberta Court of Queen's Bench held that (1) a conditional sales agreement existed; (2) s. 19 of the Seizures Act precluded the landlord from distraining against goods owned by TSC and (3) the Personal Property Security Act was irrel­evant, because there was no true priority issue where the landlord was a stranger qua the conditional vendor (TSC).

Landlord and Tenant - Topic 8746

Distress - Goods liable to distress - Goods purchased by tenant under a condi­tional sale contract - A landlord dis­trained goods on the tenant's premises, including goods purchased by the tenant under a conditional sales agreement - The landlord claimed priority because the conditional vendor did not comply with the registra­tion requirements of the Personal Property Security Act - A Master of the Alberta Court of Queen's Bench held that the Act was irrelevant - Section 19 of the Seizures Act precluded a landlord from distraining against a conditional vendor's interest in goods - There was no true priority issue where the landlord, because of s. 19, was a stranger qua the conditional vendor - The Personal Property Security Act did not change the restriction on a landlord's right of distress - Accordingly, the conditional vendor was entitled to the return of its goods.

Landlord and Tenant - Topic 8825

Distress - Priorities - Re conditional sale contracts - [See Landlord and Tenant - Topic 8746 ].

Personal Property - Topic 6002

Security interests - Application of legisla­tion - [See Landlord and Tenant - Topic 8746 ].

Cases Noticed:

W.C. Fast Enterprises Ltd. v. All-Power Sports (1973) Ltd. et al. (1981), 29 A.R. 483; 16 Alta. L.R.(2d) 47 (C.A.), refd to. [para. 10].

Joseph Group of Companies Inc. v. Pickles Tents & Awnings Ltd. (1981), 10 Man.R.(2d) 19; 127 D.L.R.(3d) 176 (C.A.), refd to. [para. 12].

Atlas Industries v. Federal Business Development Bank (1983), 3 P.P.S.A.C. 39 (Sask. Q.B.), refd to. [para. 14].

National Trailer Convoy of Canada Ltd. v. Bank of Montreal (1980), 1 P.P.S.A.C. 87 (Ont. H.C.), refd to. [para. 29].

Royal Trust Corp. of Canada v. No. 7 Honda Sales Ltd. (1987), 35 B.L.R. 286 (Ont. Dist. Ct.), refd to. [para. 30].

Dexleigh Corp. v. O'Toole's Realty (Alberta) Ltd. and 320456 Alberta Ltd. (1986), 72 A.R. 144 (Q.B., Master), refd to. [para. 39].

Sheckter and Zahar v. 338445 Alberta Ltd. (1991), 109 A.R. 260 (Q..B, Master), refd to. [para. 39].

Bank of Montreal v. Unit Liner Western Ltd. et al. (1984), 54 A.R. 114 (C.A.), refd to. [para. 40].

Statutes Noticed:

Personal Property Security Act, S.A. 1988, c. P-4.05, sect. 2 [para. 38]; sect. 10(1)(a), 10(1)(b)(i) [para. 18]; sect. 19(1), sect. 19(2) [para. 35].

Sale of Goods Act, R.S.A. 1980, c. S-2, sect. 6(1), sect. 20 [para. 9].

Seizures Act, R.S.A. 1980, c. S-11, sect. 2 [para. 38]; sect. 19 [para. 35].

Authors and Works Noticed:

Wood and Wylie, Non-Consensual Secur­ity Interests in Personal Property (1992), 30 Alta. L. Rev. 1055, pp. 1084, 1085 [para. 51].

Counsel:

B. Maruyama (Milner Fenerty), for the applicant;

P.A. Shenher (Parlee McLaws), for the respondent.

This application was heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following judgment on May 17, 1995.