Mills et al. v. Drum Head Estates Ltd. et al., 2013 NSSC 214

• Judge: Wright, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 30, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSSC 214;(2013), 332 N.S.R.(2d) 19 (SC)

Mills v. Drum Head Estates Ltd. (2013), 332 N.S.R.(2d) 19 (SC);

    1052 A.P.R. 19

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JL.017

George E. Mills Jr., Trustee of the Estate of Stephen Beal Chapin a Bankrupt (plaintiff) v. Drum Head Estates Limited, Celia McLure and Angela Chapin (defendants)

(Hfx. No. 262472; 2013 NSSC 214)

Indexed As: Mills et al. v. Drum Head Estates Ltd. et al.

Nova Scotia Supreme Court

Wright, J.

January 30, 2013.

Summary:

A bankruptcy trustee moved for an order under s. 3(2) of the Limitation of Actions Act to disallow the respondents' limitation defence.

The Nova Scotia Supreme Court, in a decision reported at 299 N.S.R.(2d) 140; 947 A.P.R. 140, allowed the motion. The respondents appealed.

The Nova Scotia Court of Appeal, in a decision reported at 309 N.S.R.(2d) 69; 979 A.P.R. 69, dismissed the appeal. The trustee brought a motion for summary judgment on the evidence.

The Nova Scotia Supreme Court dismissed the motion.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff bankruptcy trustee brought a summary judgment motion on the evidence, seeking judgment for $463,000, plus interest at 10% payable from the dates of advances made to the present - The defendants opposed the motion, arguing that this was not a loan made by the bankrupt (Chapin), but an investment Chapin made in a company (Drum Head Estates) for the acquisition of shares; as such, it was not now recoverable by the plaintiff - Paragraph seven of the defence read that, "Chapin invested the sum of approximately $463,000 in Drum Head." - The Nova Scotia Supreme Court dismissed the motion - There were material facts in dispute which required a full hearing of evidence at trial: (1) whether the injection of $463,000 by Chapin into Drum Head Estates was made by way of a shareholder's loan or an investment for acquisition of shares; (2) if a loan, was interest payable at 10% percent and, if so, from what date did it accrue; and, (3) even if originally a loan, was it still payable given events in 1996 surrounding the settlement of a shareholder oppression action - Thus, the second stage of summary judgment test, namely assessing the relative merits of the case, was not reached.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Cases Noticed:

Hiltz v. 2420188 Nova Scotia Ltd. et al. (2011), 307 N.S.R.(2d) 89; 975 A.P.R. 89; 2011 NSCA 74, appld. [para. 15].

Counsel:

Geoffrey Saunders, for the plaintiff;

G.F. Philip Romney, for the defendants.

This case was heard by Wright, J., of the Nova Scotia Supreme Court, on January 30, 2013. The court delivered the following decision orally on the same date which was released in writing on July 8, 2013.