MacCulloch v. McInnes, Cooper & Robertson, 2000 NSCA 92

• Judge: Cromwell, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 03, 2000
• Jurisdiction: Nova Scotia
• Citations: 2000 NSCA 92;(2000), 186 N.S.R.(2d) 398 (CA)

MacCulloch v. McInnes, Cooper (2000), 186 N.S.R.(2d) 398 (CA);

 581 A.P.R. 398

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. AU.013

McInnes, Cooper & Robertson, a registered Partnership, and Stewart McInnes (appellants) v. Patricia B. MacCulloch (respondent)

(C.A. No. 165211; 2000 NSCA 92)

Indexed As: MacCulloch v. McInnes, Cooper & Robertson

Nova Scotia Court of Appeal

Cromwell, J.A.

August 3, 2000.

Summary:

MacCulloch, one of the executors of her deceased husband's estate, purchased estate assets for $500,000 (appraised value) without disclosing a previous agreement to sell the assets to a third party for $1,800,000. After the estate subsequently went bankrupt, the Trustee in Bankruptcy successfully sued MacCulloch for a declaration that she held the sales proceeds in trust for the estate. Subsequently, the judgment was set off against MacCulloch's share of the estate. MacCulloch brought a negligence action for damages against the solicitor who repre­sented her respecting the agreement to pur­chase the estate assets.

The Nova Scotia Supreme Court, in a judgment reported 184 N.S.R.(2d) 40; 573 A.P.R. 40, found the solicitor negligent for arranging the sale without court approval. It was neg­ligence to be unaware of the restric­tions on an executor buying estate property and in concluding that MacCulloch would be pro­tected if the bene­ficiaries all signed off. The court rejected the solicitor's submission that MacCulloch would not have heeded the correct advice, had it been given. That sub­mission was too specu­lative. Damages equalled the $61,930.50 in legal fees incurred by MacCulloch in de­fending the action by the Trustee plus the legal costs paid by the Trustee which were attributable to the action. The solicitor appealed and applied to stay execution of the judgment (other than payment of $50,000 of the $350,000 total) pending the hearing of the appeal.

The Nova Scotia Court of Appeal, per Cromwell, J.A., allowed the application, ordering payment of $50,000 and staying execution of the balance of the judgment.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - The plaintiff obtained a judgment of approximately $350,000 against the defendants - The defendants appealed and applied under rule 62.10 to stay execution of the judg­ment pending the appeal, subject to pay­ment of $50,000 of the judgment to the plaintiff within seven days - The Nova Scotia Court of Appeal, per Cromwell, J.A., allowed the application, ordering payment of $50,000 and staying execution of the balance of the judgment - The appeal raised arguable issues putting the whole amount of the judgment in issue - If the stay were not granted, the defendants would suffer irreparable harm where there was a significant risk that the defendants, if successful on appeal, would be unable to recover any monies paid on the judgment -Conversely, with the partial payment of $50,000 to the plaintiff, there was no irreparable harm to the plaintiff in granting the partial stay.

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 3].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 4].

Dillon v. Kelly (1995), 145 N.S.R.(2d) 194; 418 A.P.R. 194 (C.A.), refd to. [para. 12].

Counsel:

Dufferin Harper, for the appellants;

Patricia B. MacCulloch, on her own behalf.

This application was heard on August 3, 2000, before Cromwell, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment orally on August 3, 2000.