Hinton Realty Ltd. v. Dunn et al., (1985) 63 A.R. 55 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 11, 1985
• Citations: (1985), 63 A.R. 55 (QBM)

Hinton Realty Ltd. v. Dunn (1985), 63 A.R. 55 (QBM)

MLB headnote and full text

Hinton Realty Ltd. v. Dunn and Edinger

(No. 8403 33727)

Indexed As: Hinton Realty Ltd. v. Dunn et al.

Alberta Court of Queen's Bench

Quinn, Master in Chambers

April 11, 1985.

Summary:

1984 Alberta Opportunity Company caused the sheriff to seize pursuant to a distress warrant, certain chattels belonging to Dunn and Edinger. Dunn and Edinger had defaulted on a chattel mortgage they executed in favour of Alberta Opportunity. Subsequently, Hinton Realty (Dunn and Edinger's landlord) caused the sheriff to seize the same chattels for arrears of rent. By agreement of counsel the chattels were sold and the proceeds held in trust pending this application by Hinton Realty to determine who had priority to the chattels.

The Alberta Court of Queen's Bench held that the chattel mortgagee (Alberta Opportunity) had full priority over the Hinton's, the landlord's claim.

Landlord and Tenant - Topic 8824

Distress - Priorities - Re chattel mortgages - The Statute of Anne, 1709 (Imp.), 8 Anne, c. 18, provided that no goods on leased premises could be taken by virtue of any execution until the party who promoted the execution paid any rent arrears owing for up to one year - A Master of the Alberta Court of Queen's Bench held that a distress warrant under a chattel mortgage was not an "execution" within the meaning of the statute; therefore a chattel mortgagee seizing goods under a distress warrant on a landlord's property was entitled to full priority over the landlord and need not pay rent arrears.

Words and Phrases

Execution - A Master of the Alberta Court of Queen's Bench discussed the meaning of word "execution" as it appeared in the Statute of Anne, 1709 (Imp.), 8 Anne, c. 18 - See paragraph 8.

Words and Phrases

Distress - A Master of the Alberta Court of Queen's Bench discussed the meaning of the word "distress" as distinguished from the word "execution" - See paragraph 9.

Cases Noticed:

Circa 1880 Imports Ltd. v. Antique Photo Parlour Ltd. (1983), 55 A.R. 19; 27 Alta. L.R.(2d) 397, consd. [para. 4].

Statutes Noticed:

Seizures Act, R.S.A. 1980, c. S-11, sect. 1(d), sect. 1(g) [para. 10].

Statute of Anne, 1709 (Imp.) 8 Anne, c. 18 [para. 5].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 13, p. 107 [para. 9]; vol. 17, pp. 232, 233 [para. 8].

Counsel:

J.T. Neilson, for Alberta Opportunity Company;

R. Rooneem, for Hinton Realty Ltd.

This application was heard before Quinn, Master in Chambers, of the Alberta Court of Queen's Bench, who delivered the following decision April 11, 1985: