Purdy v. Fulton Insurance Agencies Ltd., (1991) 105 N.S.R.(2d) 421 (CA)

• Judge: Chipman, Hart and Freeman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 22, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 105 N.S.R.(2d) 421 (CA)

Purdy v. Fulton Ins. Agencies (1991), 105 N.S.R.(2d) 421 (CA);

  284 A.P.R. 421

MLB headnote and full text

Kendall W. Purdy (appellant) v. Fulton Insurance Agencies Limited (respondent)

(S.C.A. No. 02378)

Indexed As: Purdy v. Fulton Insurance Agencies Ltd.

Nova Scotia Supreme Court

Appeal Division

Chipman, Hart and Freeman, JJ.A.

March 22, 1991.

Summary:

An insurance agency brought an action against its former controller for damages for conversion and fraud. The controller coun­terclaimed for damages for wrongful dis­missal and in defence claimed entitlement to the funds he held. The agency applied for summary judgment respecting part of its claim, which the controller admitted that he held and were the agency's funds.

The Nova Scotia Supreme Court, Trial Division, in a judgment unreported in this series of reports allowed the application despite the control­ler's counterclaim. The controller appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Practice - Topic 1848

Pleadings - Counterclaim and set-off - Set-off - Liquidated demand v. claim for unliquidated damages - [See Practice - Topic 5706 ].

Practice - Topic 1850

Pleadings - Counterclaim and set-off - Set-off - Equitable set-off - [See Prac­tice - Topic 5706 ].

Practice - Topic 5706

Judgments and orders - Summary judg­ments - Counterclaim or set-off - Effect of - The plaintiff claimed damages for conversion and fraud - The defendant denied wrongdoing and counterclaimed for damages for wrongful dismissal - The plaintiff applied for summary judgment respecting amounts held by the defendant that he admitted belonged to the plaintiff - The defendant resisted the application on the ground that his unliquidated claim should be set off - The Nova Scotia Court of Appeal affirmed summary judgment, because the counter­claim lacked sufficient closeness to and did not impeach the plaintiff's claim.

Practice - Topic 5711

Judgments and orders - Summary judg­ments - Where part of debt admitted - [See Practice - Topic 5706 ].

Cases Noticed:

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385; 21 C.P.C.(2d) 1, appld. [para. 10].

Federal Commerce & Navigation Co. v. Molena Alpha Inc., [1978] 3 All E.R. 1066, appld. [para. 11].

Atlantic Lines & Navigation Company Inc. v. Ship "Didymi" and Didymi Corpor­ation (1987), 78 N.R. 99; 39 D.L.R.(4th) 399, appld. [para. 12].

Chet's Transport Inc. v. Seaway Distribu­tors Limited (1983), 69 N.S.R.(2d) 88; 163 A.P.R. 88, not folld. [para. 14].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 13 [para. 9]; rule 14.20 [para. 13].

Counsel:

A.M. Cameron, for the appellant;

P.M. Rogers, for the respondent.

This case was heard on March 22, 1991, at Halifax, N.S., before Chipman, Hart and Freeman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On March 22, 1991, Chipman, J.A., delivered the following oral judgment for the Appeal Division: