Hurst v. Soucoup et al.,

• Jurisdiction: New Brunswick
• Judge: Rideout, J.
• Neutral Citation: 2010 NBQB 216
• Citation: (2010), 361 N.B.R.(2d) 329 (TD),2010 NBQB 216,361 NBR(2d) 329,(2010), 361 NBR(2d) 329 (TD),361 N.B.R.(2d) 329
• Date: 10 June 2010
• Court: Court of Queen's Bench of New Brunswick (Canada)

Hurst v. Soucoup (2010), 361 N.B.R.(2d) 329 (TD);

    361 R.N.-B.(2e) 329; 931 A.P.R. 329

MLB headnote and full text

Sommaire et texte intégral

[English language version only]

[Version en langue anglaise seulement]

.........................

Temp. Cite: [2010] N.B.R.(2d) TBEd. JN.031

Renvoi temp.: [2010] N.B.R.(2d) TBEd. JN.031

Stephen Richard Hurst (applicant) v. Susan Soucoup, Matthew Brennan and Daniel Brennan (respondents)

(M/M/18-10; 2010 NBQB 216; 2010 NBBR 216)

Indexed As: Hurst v. Soucoup et al.

Répertorié: Hurst v. Soucoup et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

June 17, 2010.

Summary:

Résumé:

Hurst was granted a life estate in real property, provided for in a deed. The remainder interest in the property was subsequently deeded to the respondents. Hurst applied for a determination against the respondents that he was entitled to exclusive possession of the property and for an order that he be awarded costs on a solicitor/client basis.

The New Brunswick Court of Queen's Bench, Trial Division, determined that Hurst was entitled to exclusive possession of the property during his lifetime or until he abandoned the property. The court ordered that the respondents jointly and severally pay "substantial" costs of $3,500.

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Where claim or defence irrelevant, scandalous or without merit - The applicant applied for an order against the respondents, self-represented family members, for a determination that he was entitled to exclusive possession of property due to the granting of a life estate provided for in a deed, and that he be awarded costs on a solicitor/client basis - The New Brunswick Court of Queen's Bench, Trial Division, made the requested determination and held that a substantial award of costs was warranted - The court ordered that the respondents jointly and severally pay costs of $3,500 - The respondents had misunderstood the law and caused the applicant to hire legal counsel, file two briefs on law and make two court appearances - However, their conduct was not so reprehensible, scandalous or outrageous as to warrant an award of solicitor/client costs - At the same time, the applicant had been put to substantial expense and costs - Prior to the applicant commencing the proceedings, the respondents were advised of the law and the possible results - See paragraphs 32 to 36.

Real Property - Topic 1441

Life estates - Rights of life tenant - General - The applicant (Hurst) was granted a life estate in real property by the then owner Kathleen Soucoup (KS) - Before developing dementia, KS appointed her son her power of attorney, who subsequently deeded the property to the respondents - The respondents submitted that the deed gave a life estate to Hurst only, and that no one else could come onto the property without the consent of the respondents - The New Brunswick Court of Queen's Bench, Trial Division, determined that Hurst had a right to use the property as if it were his own, subject to the matter of "waste", until his death or abandonment - The respondents had no rights to the property until the property returned to KS or her estate, upon the death or abandonment of Hurst - There was no limitation to the use by Hurst contained in the deed which conveyed the life interest to him, nor was there any restriction contained in the subsequent deed to the respondents - There were no restrictions or different intention contained in the life estate deed - "Consequently, it is as if Kathleen Soucoup sold the property to Mr. Hurst subject to it reverting back to Kathleen Soucoup on Mr. Hurst's death or abandonment. It is a freehold interest subject to that reversion" - See paragraphs 26 to 31.

Real Property - Topic 1466

Life estate - Duties of life tenant - To remainderman - [See Real Property - Topic 1441 ].

Biens réels - Cote 1441

Domaines viagers - Droit du tenant viager - Généralités - [Voir Real Property - Topic 1441 ].

Biens réels - Cote 1466

Domaines viagers - Obligations du tenant viager - Envers les résiduaires - [Voir Real Property - Topic 1466 ].

Procédure - Cote 7457

Dépens - Frais entre avocat et client - Droit aux frais entre avocat et client - Lorsque la demande ou la défense est non pertinente, scandaleuse ou sans mérite - [Voir Practice - Topic 7457 ].

Cases Noticed:

Pettigrew v. Durley (1972), 5 N.B.R.(2d) 834 (Q.B.), refd to. [para. 23].

McKay v. Henderson Estate (1991), 113 N.B.R.(2d) 308; 285 A.P.R. 308 (T.D.), refd to. [para. 24].

Blanchard v. Légère et al. (2002), 246 N.B.R.(2d) 61; 638 A.P.R. 61 (T.D.), refd to. [para. 24].

Statutes Noticed:

Rules of Court (N.B.), rule 16.04(e), rule 16.04(f) [para. 16].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (Looseleaf), pp. 6-1, 6-2, 6-3 [para. 19].

Cheshire, Geoffrey Chevalier, and Burn, E.H., Modern Law of Real Property (15th Ed. 1994), pp. 266 to 273 [para. 20].

Elphinstone, Howard Warburton, Rules for the Interpretation of Deeds, generally [para. 25].

Orkin, Mark, M., The Law of Costs (2nd Ed. 1987) (Looseleaf), vol. 1, pp. 2-7, 2-8, 2-213, 2-215, 2-228 [para. 32].

Sinclair, Alan M., and McCallum, Margaret E., An Introduction to Real Property Law (5th Ed. 2005), pp. 15, 16 [para. 22].

Ziff, Bruce H., Principles of Property Law (3rd Ed. 2000), pp. 162, 164 to 170 [para. 21].

Counsel:

Avocats:

Stephen D.G. McKnight, Q.C., and Deborah C. Watton, on behalf of the applicant;

Susan Soucoup, Matthew Brennan, per se;

Daniel Brennan, did not appear.

This application was heard on May 10 and June 10, 2010, by Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision, dated June 17, 2010.