Alberta New Home Warranty Program v. Glenwood Homes Inc. et al., 2009 ABQB 363

• Judge: Strekaf, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 21, 2009
• Citations: 2009 ABQB 363;(2009), 467 A.R. 330 (QB)

New Home Warranty v. Glenwood Homes (2009), 467 A.R. 330 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.084

The Alberta New Home Warranty Program (plaintiff) v. Glenwood Homes Inc. and Langdon Waterworks Limited (defendants)

Langdon Waterworks Limited (plaintiff by counterclaim) v. The Alberta New Home Warranty Program and Glenwood Homes Inc. (defendants by counterclaim)

(0701 05824; 2009 ABQB 363)

Indexed As: Alberta New Home Warranty Program v. Glenwood Homes Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Strekaf, J.

June 16, 2009.

Summary:

The Alberta New Home Warranty Program was foreclosing under a crystallized floating charge against land owned by Glenwood Homes Inc. Langdon Waterworks Ltd. asserted that it was the beneficial owner of the land and that it acquired this beneficial ownership in the ordinary course of Glenwood's business prior to the crystallization of the Program's floating charge. The Program countered that Langdon did not have an equitable interest in the land. Langdon applied for summary dismissal of the foreclosure action and for an order directing the Registrar of Land Titles to issue title in its name free and clear of the Program's floating charge. The Program counter-applied for an order nisi. At issue was the priority between the floating charge and Langdon's asserted interest in the land.

A Master of the Alberta Court of Queen's Bench, in a decision reported at 467 A.R. 325, held that Langdon was the beneficial owner of the land and the Program had no remaining interest in the land. The Master issued an order directing the Registrar of Land Titles to issue a new title in the name of Langdon or its nominee. The Program appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Personal Property - Topic 6168

Security interests - Floating charge - Priority - The Alberta New Home Warranty Program was foreclosing under a crystallized floating charge against land owned by Glenwood Homes Inc. - Langdon Waterworks Ltd. asserted that it was the beneficial owner of the land and that it acquired this beneficial ownership in the ordinary course of Glenwood's business prior to the crystallization of the Program's floating charge - At issue was the priority between the floating charge and Langdon's asserted interest in the land - A Master held that Langdon was the beneficial owner of the land and the Program had no remaining interest in the land - The Program appealed, asserting that the Master had erred in failing to consider the full and proper operation of the equitable principle he relied upon in reaching his decision and a purchaser under an agreement for the sale of land had an equitable interest in the land only so long as he would be entitled to specific performance of the agreement - The Alberta Court of Queen's Bench dismissed the appeal - The land was sufficiently unique for Langdon's purposes that specific performance should be available - The relevant date for determining whether Langdon had a beneficial interest in the lands enforceable by specific performance was the date at which the priority was to be assessed, that was in November 2005 when the Program's floating charge crystallized - By that date, Langdon had expended $1.6 million on construction of the water treatment plant and backwash pond on the land, which was supplying water to Glenwood's new residential subdivision and other properties - As a result, as the Master correctly concluded, Langdon was the beneficial owner of the land and the Program had no remaining interest in the land.

Personal Property - Topic 6210

Security interests - Priorities - Interests in real property - [See Personal Property - Topic 6168 ].

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - [See Personal Property - Topic 6168 ].

Cases Noticed:

Landall Holdings v. Caratti, [1979] W.A.R. 97 (West. Aust. S.C.), refd to. [para. 5].

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379, refd to. [para. 11].

1244034 Alberta Ltd. v. Walton International Group Inc. et al. (2007), 422 A.R. 189; 415 W.A.C. 189; 2007 ABCA 372, leave to appeal denied (2008), 387 N.R. 383; 460 A.R. 149; 462 W.A.C. 149 (S.C.C.), refd to. [para. 12].

Dodge (John E.) Holdings Ltd. v. 805062 Ontario Ltd. (2003), 168 O.A.C. 252 (C.A.), leave to appeal denied (2003), 326 N.R. 195; 194 O.A.C. 197 (S.C.C.), refd to. [para. 13].

Authors and Works Noticed:

DiCastri, J. Victor, The Law of Vendor and Purchaser (3rd Ed.), p. 1-14 [para. 10].

Counsel:

D. Michael Ellery (Warren Tettensor Amantea LLP), for the plaintiff and defendants by counterclaim;

David F. Youngren (Dunphy Best Blocksom LLP), for the defendants and plaintiff by counterclaim.

This appeal was heard on May 21, 2009, by Strekaf, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on June 16, 2009.