Nash v. Canadian Imperial Bank of Commerce, (1996) 175 N.B.R.(2d) 211 (TD)

• Judge: Riordon, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 08, 1996
• Jurisdiction: New Brunswick
• Citations: (1996), 175 N.B.R.(2d) 211 (TD)

Nash v. CIBC (1996), 175 N.B.R.(2d) 211 (TD);

    175 R.N.-B.(2e) 211; 446 A.P.R. 211

MLB headnote and full text

[French language version follows English language version]

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

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Joseph S. Nash and Zelda M. Nash (applicants) v. Canadian Imperial Bank of Commerce, a Canadian Chartered Bank (respondent)

(N/C/207/94)

Indexed As: Nash v. Canadian Imperial Bank of Commerce

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Riordon, J.

February 8, 1996.

Summary:

Nash executed a promissory note and a collateral mortgage in favour of a bank. Nash also obtained disability insurance on forms supplied by the bank. The mortgage went into default. Nash claimed against the insurer for disability benefits. The insurer denied the claim. The bank commenced an action to recover on the outstanding loan. Nash counterclaimed against the bank claiming misrepresentation in regard to the disability insurance coverage. The insurer was added to the action as a party. The bank also decided to exercise its power of sale. Notice of sale of the property was given. Nash applied for an interlocutory injunction to prevent the sale of the property.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appli­cation.

Injunctions - Topic 1610

Interlocutory or interim injunctions - Circumstances when injunction will not be granted - Nash executed a promissory note and a collateral mortgage in favour of a bank ($37,745.11) - Nash also obtained disability insurance on forms supplied by the bank - The mortgage went into default - Nash claimed against the insurer for disability benefits - The insurer denied the claim - The bank commenced an action to recover on the outstanding loan - Nash counterclaimed against the bank claiming misrepresentation in regard to the disability insurance coverage - The bank also decided to exercise its power of sale - Nash applied for an interlocutory injunc­tion to prevent the sale of the property - The bank submitted that it was entitled to carry forward with its remedies concur-rently - The New Brunswick Court of Queen's Bench, Trial Division, declined to issue the injunction.

Cases Noticed:

Daly et al. v. Petro-Canada et al. (1994), 153 N.B.R.(2d) 164; 392 A.P.R. 164 (T.D.), dist. [para. 13].

Calvert v. Municipal Mortgage Corp. (1967), 147 N.B.R.(2d) 161; 375 A.P.R. 161 (C.A.), consd. [para. 13].

Relph et al. v. New Brunswick Telephone Co. (1979), 28 N.B.R.(2d) 596; 63 A.P.R. 596 (C.A.), refd to. [para. 13].

Mar-Sand Properties Ltd. v. Central Mort­gage & Housing Corp. (1975), 12 N.B.R.(2d) 597; 10 A.P.R. 597 (Q.B.), consd. [para. 13].

Counsel:

Norville Getty, for the applicants;

Kathryn L. Stratton, for the respondent.

This application was heard at Miramichi, New Brunswick, on February 8, 1996, before Riordon, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered orally the following judgment on the same date.