Meridian Developments Ltd. v. Nu-West Group Ltd., (1984) 52 A.R. 248 (CA)

• Judge: McGillivray, C.J.A., Haddad and Laycraft, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 29, 1984
• Citations: (1984), 52 A.R. 248 (CA);1984 ABCA 75;6 DLR (4th) 663;[1984] 4 WWR 97;31 Alta LR (2d) 1;52 AR 248;[1984] AJ No 983 (QL);32 RPR 149

Meridian Dev. Ltd. v. Nu-West Group (1984), 52 A.R. 248 (CA)

MLB headnote and full text

Meridian Developments Ltd. v. Nu-West Group Ltd.

(No. 15534)

Indexed As: Meridian Developments Ltd. v. Nu-West Group Ltd.

Alberta Court of Appeal

McGillivray, C.J.A., Haddad and Laycraft, JJ.A.

March 29, 1984.

Summary:

A purchaser defaulted in instalment payments under an agreement for the sale of land. The vendor, instead of proceeding against the purchaser, commenced an action against the guarantor of the instalment payments. Default judgment was entered. The guarantor applied for a declaration that under ss. 40(2) and (3) of the Law of Property Act the vendor could not levy execution on the judgment until the property was sold and a deficiency was determined. The vendor submitted that ss. 40(2) and (3) were impliedly repealed.

The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, dismissed the application and held that the vendor was entitled to levy execution. The guarantor appealed.

The Alberta Court of Appeal dismissed the appeal and held that the guarantor was liable under the guarantee without the necessity of selling the land first, because, although ss. 40(2) and (3) were not impliedly repealed, the sections did not apply to the obligations of a guarantor of the purchaser's covenants in an agreement for sale.

Guarantee and Indemnity - Topic 1059

Liability of surety to creditor - Action against surety - Time for - A vendor sued the guarantor of instalment payments under an agreement for the sale of land, without first proceeding against the purchaser - Default judgment was entered - Sections 40(2) and (3) of the Law of Property Act prohibited execution on a judgment based upon a personal covenant in an agreement for the sale of land until the land was sold - The Alberta Court of Appeal held that, since the guarantor's obligations were separate and not based upon the covenant in the agreement, ss. 40(2) and (3) did not apply and execution could be levied on the judgment against the guarantor without requiring the sale of the land first - See paragraphs 26 to 43.

Guarantee and Indemnity - Topic 1106

Liability of surety to creditor - Judgment against surety - Stay of execution - A vendor sued the guarantor of instalment payments under an agreement for the sale of land, without first proceeding against the purchaser - Default judgment was entered - The Alberta Court of Appeal stated that there was no rule of law requiring sale of the land before proceeding against the guarantor and refused to exercise its discretion under s. 18(1)(b) of the Judicature Act to stay execution of the judgment until the land was sold and a deficiency determined - See paragraphs 39 to 43.

Statutes - Topic 6226

Operation and effect - Effect on earlier statutes - Implied repeals - The Alberta Court of Appeal referred to the general rule that where two statutes are inconsistent or repugnant, the later statute would impliedly repeal the earlier one, and referred to the reluctance of courts to apply it because of the inconvenience and devastating effects caused by its application - See paragraphs 9 to 25.

Cases Noticed:

Credit Foncier Franco Canadian v. Edmonton Airport Hotel Co. Ltd. and Superstein (1964), 48 W.W.R.(N.S.) 641, affd. [1965] S.C.R. 441, consd. [paras. 2, 37-40].

Kutner v. Phillips, [1891] 2 Q.B. 267, refd to. [para. 19].

G.W. Ry. Co. v. Swindon (1883), 9 App. Cas. 787, refd to. [para. 20].

Canadian Westinghouse Co. v. Grant, [1927] S.C.R. 625, refd to. [para. 20].

Re Otto Bartel Homes Ltd. and the City of Calgary (1972), 30 D.L.R.(3d) 184 (Alta. C.A.), refd to. [para. 20].

Seward v. Vera Cruz (1884), 10 App. Cas. 59, refd to. [para. 21].

R. v. Faulkner (1958), 24 W.W.R.(N.S.) 524, refd to. [para. 21].

Perry v. National Provincial Bank of England, [1910] 1 Ch. 464, refd to. [para. 28].

Moschi v. Lep Air Services Ltd., [1973] A.C. 331, refd to. [para. 29].

Hyundai Shipbuilding and Heavy Industries Ltd. v. Pournaras, [1978] 2 Lloyds Rep. 502, refd to. [para. 29].

Hyundai Heavy Industries Co. Ltd. v. Papadopolous, [1980] 1 W.L.R. 1129, refd to. [para. 29].

Bauer v. Bank of Montreal, [1980] 2 S.C.R. 102; 32 N.R. 191, refd to. [para. 29].

Roynat Ltd. v. Denis, [1982] 5 W.W.R. 509; 17 Sask.R. 415, refd to. [para. 29].

McDonald v. Clarkson, [1923] 3 W.W.R. 690 (Alta. C.A.), dist. [para. 30].

Krook v. Yewchuk, [1962] S.C.R. 535, appld. [paras. 30, 32-36].

Okanogan Loan and Investment Trust Company v. McDonald, [1935] 1 W.W.R. 481; 49 B.C.R. 468, refd to. [para. 41].

Chesler v. Currey, [1955] O.W.N. 408, refd to. [para. 42].

Statutes Noticed:

Law of Property Act, R.S.A. 1980, c. L-8, sect. 40(2), sect. 40(3) [para. 6].

Land Titles Act, S.A. 1919, c. 37, sect. 62(2) [para. 10].

Authors and Works Noticed:

Craies on Statute Law (7th Ed.), p. 366 [para. 19].

Driedger, The Construction of Statutes, pp. 83 [para. 24]; 184 [para. 22].

Maxwell on Interpretation of Statutes (12th Ed.), p. 193 [para. 19].

Counsel:

G.F. Scott, for the appellant;

J.G. Shea, and A.Z. Breitman, for the respondent.

This appeal was heard before McGillivray, C.J.A., Haddad and Laycraft, JJ.A., of the Alberta Court of Appeal.

On March 29, 1984, Laycraft, J.A., delivered the following judgment for the Court of Appeal.