Mercantile Bank and Trust Co., Liquidators of and Mercantile Bank and Trust Co. v. Credit Europeen S.A., (1981) 36 N.B.R.(2d) 339 (CA)

• Judge: Hughes, C.J.N.B., Ryan and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 05, 1981
• Jurisdiction: New Brunswick
• Citations: (1981), 36 N.B.R.(2d) 339 (CA)

Mercantile Bk. v. Credit Europeen (1981), 36 N.B.R.(2d) 339 (CA);

    36 R.N.-B.(2e) 339; 94 A.P.R. 339

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Mercantile Bank and Trust Company Limited, Liquidators of and Mercantile Bank and Trust Company v. Credit Europeen S.A.

(214/80/CA)

Indexed As: Mercantile Bank and Trust Co., Liquidators of and Mercantile Bank and Trust Co. v. Credit Europeen S.A.

Répertorié: Mercantile Bank and Trust Co., Liquidators of and Mercantile Bank and Trust Co. v. Credit Europeen S.A.

New Brunswick Court of Appeal

Hughes, C.J.N.B., Ryan and Richard, JJ.A.

August 18, 1981.

Summary:

Résumé:

A company lent funds to a related bank to enable it to loan money to a customer. The customer repaid the loan to the bank, which subsequently failed. The customer made an interpleader application to determine entitlement to the monies repaid, as between the bank and the company.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported in 32 N.B.R.(2d) 239; 78 A.P.R. 239, held that the bank was entitled to the funds. The Trial Division held that the company had no claim to the monies, either in equity or contract, and that a debtor-creditor relationship existed between the bank and the company. The company appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Trusts - Topic 2310

Constructive trusts - Circumstances when not imposed - A company loaned money to a related bank to enable it to make a loan to a customer - When the bank failed, the company claimed the monies, which had been repaid by the customer for its loan - The New Brunswick Court of Appeal affirmed that the funds were not impressed with a constructive trust in favour of the company - See paragraphs 3 to 6.

Trusts - Topic 2768

Beneficiaries - Remedies on breach - Tracing - When available - A subsidiary company of a bank loaned it funds to enable it to make a loan to a customer - When the bank subsequently failed, both parties claimed the monies which the customer had repaid - The New Brunswick Court of Appeal affirmed that the remedy of tracing the funds was unavailable, where no fiduciary or quasi-fiduciary relationship between the company and the bank was found - See paragraphs 3 to 6.

Practice - Topic 8790

Appeals - General principles - The New Brunswick Court of Appeal referred to the function of the appellate court not to re-try cases - See paragraphs 7 to 10.

Practice - Topic 8808

Appeals - Duty of appellate court respecting interpretation of evidence by trial judge - The New Brunswick Court of Appeal discussed the duty of the appellate court not to interfere with the conclusions reached by the trial judge unless he has failed to consider evidence or misapprehended any of the evidence - See paragraphs 7 to 10.

Words and Phrases

Re-hearing - The New Brunswick Court of Appeal discussed the meaning of the word "re-hearing" as found in Order 56, r. 1, of the Rules of Court (N.B.) - See paragraphs 7 to 8.

Cases Noticed:

Powell and Wife v. Streatham Manor Nursing Home, [1935] A.C. 243 (H.L.), refd to. [para. 7].

Schreiber Brothers Limited v. Currie Products Limited and Gulf Oil Canada Limited, [1980] 2 S.C.R. 78; 31 N.R. 335, refd to. [para. 8].

Clarke v. Edinburgh and District Tramways Company Limited, [1919] S.C. 35 (H.L.), refd to. [para. 9].

Savoie v. Kenny (1975), 12 N.B.R.(2d) 91; 10 A.P.R. 91, refd to. [para. 10].

Statutes Noticed:

Rules of Court (N.B.), Order 56, rule 1 [para. 7].

Counsel:

John W. Turnbull, for the defendant-appellant;

David T. Hashey, Q.C., for the plaintiff-respondent.

This appeal was heard before HUGHES, C.J.N.B., RYAN and RICHARD, JJ.A., of the New Brunswick Court of Appeal, at Fredericton, N.B., on March 5, 1981. The judgment of the Court of Appeal was delivered in English by HUGHES, C.J.N.B., on August 18, 1981. The French translation of the judgment is set out immediately following.