Oceanus Marine Inc. v. Saunders, (1999) 175 N.S.R.(2d) 153 (CA)

• Judge: Pugsley, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 11, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 175 N.S.R.(2d) 153 (CA)

Oceanus Marine Inc. v. Saunders (1999), 175 N.S.R.(2d) 153 (CA);

    534 A.P.R. 153

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. MR.025

Edmund R. Saunders and Reta W. Saunders (applicants/appellants) v. Oceanus Marine Incorporated (respondent)

(CA: 153762)

Indexed As: Oceanus Marine Inc. v. Saunders

Nova Scotia Court of Appeal

Pugsley, J.A.

February 15, 1999.

Summary:

Saunders and his wife defaulted on their mortgage. The mortgagee was granted an order of foreclosure and sale. The Saunders appealed the order and applied to stay the sale to enable them to obtain financing.

The Nova Scotia Court of Appeal, per Pugsley, J.A., dismissed the application.

Editor's Note: For related cases involving these parties see 148 N.S.R.(2d) 282; 429 A.P.R. 282, 153 N.S.R.(2d) 267; 450 A.P.R. 267, 156 N.S.R.(2d) 287; 461 A.P.R. 287, 160 N.S.R.(2d) 393; 473 A.P.R. 393, 171 N.S.R.(2d) 108; 519 A.P.R. 108.

Mortgages - Topic 5513

Mortgage actions - Action for foreclosure and sale - Foreclosure order - Amending, staying or vacating - [See Practice - Topic 8950 ].

Mortgages - Topic 5675

Mortgage actions - Sale - Postponement - [See Practice - Topic 8950 ].

Practice - Topic 8950

Appeals - Stay of proceedings pending appeal - General principles - The Nova Scotia Court of Appeal, per Pugsley, J.A., stated that an applicant for a stay may meet the "primary test, so called, by sat­isfying the court that "there is an arguable issue raised on the appeal, that the appli­cant will suffer irreparable harm if the stay is not granted, and that the balance of convenience between the parties favours the granting of stay, or, the secondary test, that there are exceptional circumstances which would make it fit, and just, that the stay be granted" - See paragraph 18.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Practice - Topic 8950 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - Saunders and his wife defaulted on their mortgage - The mortgagee was granted an order of foreclosure and sale - The Saun­ders appealed the order and sought to stay the sale to enable them to obtain financing - The Nova Scotia Court of Appeal, per Pugsley, J.A., declined to grant the stay - There were no exceptional circumstances which would make it fit and just that a stay be granted.

Practice - Topic 8960

Appeals - Stay of proceedings pending appeal - Proceedings which cannot be stayed - [See second Practice - Topic 8952 ].

Cases Noticed:

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 17].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 18].

Counsel:

Edmund R. Saunders, on his own behalf;

G.F. Philip Romney, for the respondent.

This application was heard on February 11, 1999, in Chambers, before Pugsley, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on February 15, 1999.