Holnam West Materials Ltd. v. Canadian Concrete Products Ltd., (1993) 144 A.R. 214 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 19, 1993
• Citations: (1993), 144 A.R. 214 (QBM)

Holnam West v. Cdn. Concrete (1993), 144 A.R. 214 (QBM)

MLB headnote and full text

Holnam West Materials Ltd. (plaintiff) v. Canadian Concrete Products Ltd. (defendant)

(Action No. 9303-18060)

Indexed As: Holnam West Materials Ltd. v. Canadian Concrete Products Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

October 19, 1993.

Summary:

The plaintiff sued the defendant for moneys owing under a complex debt pay­ment arrangement covering an unsecured debt and a debt secured by chattel mortgage. The defendant counterclaimed and applied for a declaration that (a) it was not in default of its financial obligations to the plaintiff and (b) the seizure made by the plaintiff under the chattel mortgage was unlawful. In the alternative, the defendant applied for an order restraining or staying the plaintiff's action.

A Master of the Alberta Court of Queen's Bench held that the real nature of the defen­dant's application was for summary judg­ment. The Master dismissed the application.

Practice - Topic 351

Parties - Joinder of parties - General - Person whose participation is necessary for full and effectual adjudication - The plaintiff sued the defendant for moneys owing under a debt secured by a chattel mortgage - The Alberta Treasury Branches applied to be joined as parties on the side of the defendant - The Treasury Branches argued that if the plaintiff were allowed to sell the mortgaged chattels, that would put the defendant out of business and so the defendant would no longer be able to pay its debt to the Treasury Branches - A Master of the Alberta Court of Queen's Bench dismissed the application because the "issues between the plaintiff and the defendant can be effectually and com­pletely settled without Treasury Branches being added in as a party." - See para­graphs 118 to 130.

Practice - Topic 3412

Interim proceedings - Interpleader - When available - The plaintiff sued the defen­dant for moneys owing under a debt secured by a chattel mortgage - The Alberta Treasury Branches, also claiming money from the defendant under secured debts ranking allegedly before the plain­tiff's, applied for an interpleader order - A Master of the Alberta Court of Queen's Bench dismissed the application because the claims of the plaintiffs and of the Alberta Treasury Branches were not "adverse claims" under rule 442 of the Alberta Rules of Court - See paragraphs 110 to 117.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - The plain­tiff creditor alleged that the defendant debtor defaulted under a complex debt payment arrangement covering an unse­cured debt and a debt secured by chattel mortgage - The plaintiff accelerated the due date on both debts, seized the chattels mortgaged and sued the defendant - The latter, allegedly seeking relief from forfei­ture, replied with, among others, an appli­cation to restrain or stay the plaintiff's proceedings - A Master of the Alberta Court of Queen's Bench dismissed the application - The Master held that ac­celeration and realisation of security were not penalties or forfeitures - The Master also held that he was without jurisdiction to issue a restraining order - See para­graphs 54 to 109.

Practice - Topic 5705

Judgments and orders - Summary judg­ments - Requirement that question at issue be beyond doubt - The defendant had to pay a secured and an unsecured debt to the plaintiff by, among others, (a) making weekly payments and (b) paying plaintiff $300 per load of concrete purchased from plaintiff to be applied against the unse­cured debt - The plaintiff alleged default and sued the defendant - The latter applied for a declaration that it was not in default - A Master of the Alberta Court of Queen's Bench held that the application was for summary judgment and dismissed it because the plaintiff showed a triable issue in that if the $300 load premium were not a credit against the weekly pay­ments, then the defendant was in default in making the weekly payments - See para­graphs 40 to 53.

Cases Noticed:

Raven Holdings v. Lastiwka (1981), 28 A.R. 199 (Q.B. Mast.), refd to. [para. 56].

Bordo v. 403512 Ontario Inc. (1983), 41 O.R.(2d) 68 (H.C.), refd to. [para. 56].

Emerald Christmas Tree Co. v. Boel & Sons Enterprises (1979), 13 B.C.L.R. 122 (C.A.), refd to. [para. 76].

O'Brien v. Stebbins, [1927] 2 W.W.R. 176 (Sask. C.A.), refd to. [para. 80].

Moses v. Bank of Montreal (1982), 40 A.R. 441; 19 Alta. L.R.(2d) 67 (Q.B.), refd to. [para. 80].

T. & C. Track Service & Welding Ltd. v. Henning (1981), 30 A.R. 164 (Q.B.), refd to. [para. 80].

Amoco Canada Petroleum Co. et al. v. Alberta and Southern Gas Co. (1993), 140 A.R. 244 (Q.B.), consd. [para. 123].

Statutes Noticed:

Bankruptcy Act, R.S.C. 1985, c. B-3, sect. 244(1) [para. 29].

Court of Queen's Bench Act, R.S.A. 1980, c. C-29, sect. 9(2)(d) [para. 58].

Judicature Act, R.S.A. 1980, c. J-1, sect. 10 [para. 57]; sect. 13(2) [para. 58]; sect. 18 [para. 59]; sect. 18(1) [para. 85].

Personal Property Security Act, S.A. 1988, c. P-4.05, part. 5 [para. 74]; sect. 63(1)(a) [para. 82]; sect. 63(1)(b) [para. 85].

Rules of Court (Alta.), rule 38 [para. 118]; rule 38(3), rule 38(6) [para. 121]; rule 442 [para. 114].

Authors and Works Noticed:

Côté, An Introduction to the Law of Con­tract, pp. 147-148 [para. 44].

Counsel:

J. Hockin (Parlee, McLaws & Assoc.), for the plaintiff;

R. Henning, Q.C. (Weir, Bowen & Assoc.), for the defendant;

D. Wilson (Cruickshank, Karvellas & Assoc.), for the Treasury Branches.

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 October 19, 1993.