National Shoring Ltd. (Bankrupt) v. Dextras Engineering & Construction Ltd. et al.,

• Jurisdiction: British Columbia
• Judge: Prowse, J.A.
• Court: Court of Appeal (British Columbia)
• Citation: 2009 BCCA 236,(2009), 271 B.C.A.C. 157 (CA)
• Date: 21 May 2009

Nat. Shoring v. Dextras Eng. ( 2009 ), 271 B.C.A.C. 157 (CA);

  458 W.A.C. 157

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JN.015

E. Sands and Associates Inc., Trustee of the Estate of National Shoring Ltd., a Bankrupt (respondent/plaintiff) v. Ken Dextras and Susan Dextras (appellants/defendants)

(CA036840; 2009 BCCA 236)

Indexed As: National Shoring Ltd. (Bankrupt) v. Dextras Engineering & Construction Ltd. et al.

British Columbia Court of Appeal

Prowse, J.A.

May 28, 2009.

Summary:

National Shoring Ltd.'s trustee brought an action against the applicants and their company, Dextras Engineering & Construction Ltd., to recover money and assets transferred to them by National in alleged violation of the Bankruptcy and Insolvency Act, the Fraudulent Preference Act, the Fraudulent Conveyance Act and the Company Act. The trustee obtained default judgment against the applicants with damages and costs to be assessed. The applicants applied to set aside the default judgment.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 1803, dismissed the application. The applicants appealed.

The British Columbia Court of Appeal, in a decision reported at [2007] B.C.A.C. Uned. 53, dismissed the appeal.

The British Columbia Supreme Court assessed damages and costs (September 19, 2008) and refused the applicants application to re-open the decision (January 20, 2009) (both reported at [2008] B.C.T.C. Uned. G45). The applicants applied for an extension of time to enable them to pursue their application for leave to appeal the January 20, 2009 order, and also an extension of time to appeal the order of September 19, 2008.

The British Columbia Court of Appeal, per Prowse, J.A., dismissed the applications.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - National Shoring Ltd.'s trustee brought an action against the applicants and their company, Dextras Engineering & Construction Ltd., to recover money and assets transferred to them by National in alleged violation of the Bankruptcy and Insolvency Act, the Fraudulent Preference Act, the Fraudulent Conveyance Act and the Company Act - The trustee obtained default judgment against the applicants with damages and costs to be assessed - The chambers judge assessed damages and costs (September 19, 2008) and refused the applicants' application to re-open the decision (January 20, 2009) - The applicants applied for an extension of time to enable them to pursue their application for leave to appeal the January 20, 2009 order - The British Columbia Court of Appeal, per Prowse, J.A., dismissed the application - It was apparent that the applicants formed a bona fide intention to appeal the January 20, 2009 order within the appeal period - However, the applicants had not met the merits test of showing an arguable ground of appeal - Given the history of the litigation and the conduct of the applicants throughout, including their attempt to raise an argument at the eleventh hour, there was no basis for a successful argument that an injustice would occur if an extension of time were not granted - Further, there would be prejudice to the trustee if an extension of time for leave to appeal were granted - It had been almost nine years since the litigation had commenced - The applicants refused or failed to cooperate with the process of the courts for most of that time - The trustee had been put to considerable delay and expense in attempting to obtain judgment in the first instance - Further delays occasioned by an appeal would only delay that process further with attendant costs.

Cases Noticed:

Weyerhauser Co. v. Hayes Forest Services Ltd. et al., [2006] B.C.A.C. Uned. 124; 2006 BCCA 506, refd to. [para. 3].

Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R.(2d) 256 (C.A.), refd to. [para. 9].

Poznekoff v. Binning, [1998] B.C.T.C. Uned. 325; 19 C.P.C.(4th) 347 (S.C.), refd to. [para. 11].

Counsel:

R. Breivik, for the appellants;

B. Konst, for the respondent.

This application was heard in Chambers, on May 21, 2009, at Vancouver, B.C., by Prowse, J.A., of the British Columbia Court of Appeal, who delivered the following reasons for judgment on May 28, 2009.