Phoenix Rotary Equipment Ltd. v. Denis, (2004) 246 Sask.R. 148 (QB)

• Judge: M-E. Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 31, 2004
• Jurisdiction: Saskatchewan
• Citations: (2004), 246 Sask.R. 148 (QB);2004 SKQB 129

Phoenix Rotary Equipment v. Denis (2004), 246 Sask.R. 148 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. AP.021

Phoenix Rotary Equipment Ltd. (plaintiff) v. Jean Pierre Denis, also known as Jean Denis, doing business as Silhouette Seeds (defendant)

(2003 Q.B. No. 1988; 2004 SKQB 129)

Indexed As: Phoenix Rotary Equipment Ltd. v. Denis

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

M-E. Wright, J.

March 31, 2004.

Summary:

The plaintiff and the defendant entered into an agreement by which the defendant would purchase a grain dryer from the plaintiff. The defendant did not pay the plaintiff. The plaintiff sued the defendant. The plaintiff obtained a prejudgment garnishee summons. The defendant applied under s. 10 of the Attachment of Debts Act for an order setting aside the garnishee summons.

The Saskatchewan Court of Queen's Bench dismissed the application.

Creditors and Debtors - Topic 4213

Garnishment by creditor - Application - Affidavit - Statutory requirements - The plaintiff and the defendant entered into an agreement by which the defendant would purchase a grain dryer from the plaintiff - The defendant did not pay the plaintiff - The plaintiff sued the defendant - The plaintiff obtained a prejudgment garnishee summons - The defendant applied under s. 10 of the Attachment of Debts Act for an order setting aside the garnishee summons - The Saskatchewan Court of Queen's Bench dismissed the application - The court held that the plaintiff complied with s. 3 of the Act as its affidavit set out a prima facie claim in debt or liquidated demand - The existence of a triable issue or of a potential defence raised by the defendant in this case, if proven, could defeat the claim, but were not grounds for setting aside the garnishee summons.

Creditors and Debtors - Topic 4252

Garnishment by creditor - Garnishee summons - Setting aside - Grounds - [See Creditors and Debtors - Topic 4213 ].

Cases Noticed:

General Motors Acceptance Corp. of Canada Ltd. v. Nelson (1991), 91 Sask.R. 202 (Q.B.), consd. [para. 8].

Rolls-Royce Canada Ltd. v. La Ronge Aviation Services Ltd. (1996), 143 Sask.R. 296 (Q.B.), consd. [para. 9].

Coast Paper v. Craft Litho Ltd. and Hartshorn (1990), 83 Sask.R. 288 (C.A.), consd. [para. 10].

Northwest Holdings Ltd. v. Canoe Lake Band (1983), 28 Sask.R. 28, refd to. [para. 10].

Deneschuk Homes Ltd. v. Grunert, [1982] 4 W.W.R. 610; 28 Sask. R. 25 (Q.B.), refd to. [para. 10].

Reed Ford Tractor Sales Ltd. v. Todorowich (1994), 128 Sask.R. 90; 85 W.A.C. 90 (C.A.), refd to. [para. 11].

Ross v. HVLD Systems (1997) Ltd. (1999), 172 Sask.R. 261; 185 W.A.C. 261 (C.A.), consd. [para. 12].

Statutes Noticed:

Attachment of Debts Act, R.S.S. 1978, c. A-32, sect. 3 [para. 7].

Counsel:

C.P. Weiland, for the plaintiff;

C.K. Hirschfeld, for the defendant.

This application was heard by M-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on March 31, 2004.