Mavrikos v. Island Savings Credit Union, (1991) 1 B.C.A.C. 69 (CA)

• Judge: Hinkson, Legg and Hinds, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 12, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 1 B.C.A.C. 69 (CA)

Mavrikos v. Island Savings Credit (1991), 1 B.C.A.C. 69 (CA);

    1 W.A.C. 69

MLB headnote and full text

Dimitrios Mavrikos (plaintiff/respondent) v. Island Savings Credit Union (defendant/appellant) and Kenneth R. Newcomb (third party/appellant)

(No. CA012057)

Indexed As: Mavrikos v. Island Savings Credit Union

British Columbia Court of Appeal

Hinkson, Legg and Hinds, JJ.A.

June 12, 1991.

Summary:

A landlord and the tenant's credit union executed a non-disturbance agreement. The tenant defaulted. The landlord sued the credit union for the rental arrears, claiming the agreement provided for such liability.

The British Columbia Supreme Court interpreted the agreement to find the credit union liable. The credit union appealed.

The British Columbia Court of Appeal allowed the appeal. The agreement did not make the credit union liable, nor was there any other basis for establishing liability.

Landlord and Tenant - Topic 3845

Rent - Payment of - Persons liable - Non-disturbance agreement - A landlord consented to the tenant charging the leasehold by debenture to a credit union - The credit union, landlord and chattel mortgagee contemporaneously executed a non-disturbance agreement - The landlord claimed the agreement made the credit union liable for the tenant's default in rent - The tenant defaulted and was later petitioned into bankruptcy - The British Columbia Court of Appeal held that the trial judge erred in interpreting the agreement and subsequent correspondence between the parties to make the credit union unconditionally liable for the rent - The court also rejected the landlord's claims that the credit union was liable by virtue of the bankruptcy or as a mortgagee in possession.

Practice - Topic 1462

Pleadings - Statement of claim - Requirement of pleading basis for claim - A plaintiff claimed the defendant was liable on grounds not pleaded in the statement of claim - The pleadings did not contain the allegations upon which the claims could be founded - The British Columbia Court of Appeal rejected the unpleaded claims - See paragraph 32.

Cases Noticed:

Jameson v. London and Canadian Loan Agency Co. (1897), 27 S.C.R. 435, refd to. [para. 25].

Shapiro v. Handleman, [1947] O.R. 223, dist. [para. 31].

Karelia Limited, Re, 36 C.B.R. 58, dist. [para. 31].

Smalley v. Hardinge (1881), 7 Q.B.D. 524 (C.A.), dist. [para. 31].

Royal Centre Inc., Re (1978), 27 C.B.R.(N.S.) 82, dist. [para. 31].

Cummer-Yonge Investments Ltd. v. Fagot et al. (1965), 8 C.B.R. 63, refd to. [para. 36].

Salok Hotel Co. Ltd., Re, [1967] W.W.R. 268, refd to. [para. 36].

Citycorp Leasing Canada Ltd. v. Fraser et al. (1982), 41 C.B.R.(N.S.) 199, refd to. [para. 36].

Statutes Noticed:

Commercial Tenancy Act, R.S.B.C. 1979, c. 54, sect. 32(2), sect. 32(3) [para. 35].

Property Law Act, R.S.B.C. 1979, c. 340, sect. 34 [para. 37].

Authors and Works Noticed:

Falconbridge on Mortgages (4th Ed.), p. 98 [para. 25].

Counsel:

P.G. Foy, for the appellant, Kenneth R. Newcomb;

   K.P. Gustafson, for the appellant, Island Savings Credit Union;

J. Ticknor, for the respondent.

This appeal was heard before Hinkson, Legg and Hinds, JJ.A., of the British Columbia Court of Appeal.

On June 12, 1991, Legg, J.A., delivered the following judgment orally for the Court of Appeal.