Hillcrest Housing Ltd. et al., Re; Wedge and Whitecap Ltd. v. Hillcrest Housing Ltd. et al., (1982) 38 Nfld. & P.E.I.R. 248 (PEISC)

• Judge: McQuaid, J.
• Case Date: August 24, 1982
• Jurisdiction: Prince Edward Island
• Citations: (1982), 38 Nfld. & P.E.I.R. 248 (PEISC)

Hillcrest Housing, Re (1982), 38 Nfld. & P.E.I.R. 248 (PEISC);

    108 A.P.R. 248

MLB headnote and full text

Re Hillcrest Housing Ltd. et al.; Wedge, Wedge and Whitecap Ltd. v. Hillcrest Housing Ltd., McNeill, McNeill, Pickard, McNeill and McNeill

(No. GDC-3930)

Indexed As: Hillcrest Housing Ltd. et al., Re; Wedge and Whitecap Ltd. v. Hillcrest Housing Ltd. et al.

Prince Edward Island Supreme Court

McQuaid, J.

August 26, 1982.

Summary:

The Prince Edward Island Supreme Court issued an ex parte interim injunction restraining the defendants of a company from issuing any further shares in the capital stock of the company. The issue, upon the return of the injunction, was whether the injunction should be continued until the determination of the intended action.

The Prince Edward Island Supreme Court refused to continue the interim injunction, because of defects in the affidavit upon which the application was founded and because the applicant did not come to court with clean hands.

Equity - Topic 1481

Equitable principles respecting relief - Clean hands doctrine - The Prince Edward Island Supreme Court refused to continue an interim injunction because the applicant did not make full and frank disclosure of all the facts in his affidavit in support of the application - The court stated that the applicant did not come to court with clean hands - See paragraph 15.

Injunctions - Topic 1888

Interlocutory or interim injunctions - Evidence and proof - Affidavit evidence - The Prince Edward Island Supreme Court refused to continue an interim injunction to the date of the intended action, where the affidavit upon which the application was grounded did not set out the source of the deponent's information and belief, did not allege a serious and defined issue together with the prospects of success, did not allege that the injury could not be adequately compensated by damages, did not contain the mandatory undertaking respecting damages and did not make a full disclosure of facts - See paragraphs 10 to 15.

Injunctions - Topic 1888

Interlocutory or interim injunctions - Evidence and proof - Affidavit evidence - The Prince Edward Island Supreme Court set out the prerequisites of an affidavit upon which an application for an ex parte interim injunction may be founded - See paragraphs 4 to 9.

Injunctions - Topic 8845

Evidence and proof - Burden of proof - On motion to continue an injunction - A judge granted an ex parte interim injunction, which ordered that the defendant attend on the date of the return and show cause why the injunction should not continue until the date of the intended action - The Prince Edward Island Supreme Court stated that the order was in error, because the onus was upon the applicant to show cause why the injunction should be continued - See paragraph 3.

Cases Noticed:

American Cyanamid Co. v. Ethicon Ltd., [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504 (H.L.), refd to. [para. 4].

Bedell v. Gefeall et al. (No. 2), [1938] O.R. 726, refd to. [para. 9].

Smith v. Day (1882), 21 Ch.D. 421, refd to. [para. 9].

Counsel:

David W. Hooley, for the applicants;

W. Chester S. MacDonald, for the respondents.

This application was heard before McQUAID, J., of the Prince Edward Island Supreme Court, in Chambers, on August 24, 1982. The decision of McQUAID, J., was delivered on August 26, 1982.