Richardson Equipment Ltd. v. Jaybee Warehousing Enterprise Ltd. and Archie Colpitts Ltd., (1976) 16 N.B.R.(2d) 428 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: December 14, 1976
• Jurisdiction: New Brunswick
• Citations: (1976), 16 N.B.R.(2d) 428 (QB)

Richardson Equipment v. Jaybee (1976), 16 N.B.R.(2d) 428 (QB);

    16 R.N.-B.(2e) 428; 21 A.P.R. 428

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Richardson Equipment Ltd. v. Jaybee Warehousing Enterprise Ltd. and Archie Colpitts Ltd.

Indexed As: Richardson Equipment Ltd. v. Jaybee Warehousing Enterprise Ltd. and Archie Colpitts Ltd.

Répertorié: Richardson Equipment Ltd. v. Jaybee Warehousing Enterprise Ltd. and Archie Colpitts Ltd.

New Brunswick Court of Queen's Bench

Stratton, J.

December 14, 1976.

Summary:

Résumé:

This case arose out of the plaintiff's claim for the price of goods sold and delivered to the defendant, Jaybee Warehousing Enterprise Ltd. The plaintiff sold warehouse shelving and pallets to Jaybee Warehousing under a conditional sales agreement, which was never registered. Jaybee Warehousing installed the shelving and pallets in its warehouse, which was rented from the defendant, Archie Colpitts Ltd. Archie Colpitts Ltd. distrained the shelving and pallets for rent. The plaintiff brought an action against Jaybee Warehousing for the price and against Archie Colpitts Ltd. for a declaration that the distress was unlawful or irregular. The plaintiff claimed that the goods were not distrainable because they were fixtures and because the plaintiff retained an interest in them under the conditional sales agreement. Judgment by default was taken against Jaybee Warehousing.

The New Brunswick Court of Queen's Bench dismissed the plaintiffs action against Archie Colpitts Ltd. The Court of Queen's Bench held that the shelving and pallets were distrainable under s. 34(1)(e) of the Landlord and Tenant Act, R.S.N.B. 1973, c. L-1, because they were the subject of an unregistered conditional sales agreement. See paragraph 17.

The New Brunswick Court of Queen's Bench held that neither the shelving nor the pallets were fixtures. See paragraph 18.

Conditional Sales - Topic 4

General principles - Purpose of conditional sales legislation - The New Brunswick Court of Queen's Bench stated that the purpose of conditional sales legislation is for the protection of innocent purchasers and creditors - The Court of Queen's Bench stated that the purpose is not to enlarge the common law rights of an unpaid seller who parts with possession, but rather prevents a seller who has not complied with its provisions from asserting certain common law rights - See paragraph 14.

Landlord and Tenant - Topic 8203

Fixtures and personalty - What constitutes a fixture - The plaintiff sold warehouse shelving to the defendant, part of which was bolted to the concrete floor of the warehouse - The shelving could easily be removed without damage to itself or the building and the lagging bolts could be trimmed off flush with the floor to restore the building to its former state - The New Brunswick Court of Queen's Bench held that the shelving was not a fixture - See paragraph 18.

Landlord and Tenant - Topic 8746

Distress - Goods liable to distress - Goods purchased under conditional sale - Landlord and Tenant Act, R.S.N.B. 1973, c. L-I, s. 34(1)(e) - The plaintiff sold warehouse shelving and pallets to the defendant under a conditional sales agreement, which was never registered - The defendant landlord distrained the shelving and pallets for rent - The New Brunswick Court of Queen's Bench held that the shelving and pallets were distrainable under s. 34(1)(e) of the Landlord and Tenant Act - The Court of Queen's Bench held that the distress was not limited to the interest of the defendant in the goods - See paragraph 17.

Landlord and Tenant - Topic 8804

Distress - Relief from or bars to distress - Conditions precedent to relief - Proprietary interest of person aggrieved by distress - Landlord and Tenant Act, R.S.N.B. 1973, c. L-I, ss. 41, 42 - The New Brunswick Court of Queen's Bench stated that a proprietary interest in distrained goods was necessary to seek relief under ss. 41, 42 of the Landlord and Tenant Act - The Court of Queen's Bench held that a seller under an unregistered conditional sales agreement had no proprietary interest in the goods sold - See paragraphs 10 and 19.

Cases Noticed:

Hannah v. Pearlman, [1954] 1 D.L.R. 282, appld. [para. 14].

Re Maritime Heating Co. (1969), 1 N.B.R.(2d) 239, appld. [para. 15].

J.R. Auto Brokers Ltd. v. Hillcrest Auto Lease Ltd. et al. (1968), 70 D.L.R.(2d) 26, dist. [para. 17].

Statutes Noticed:

Conditional Sales Act, R.S.N.B. 1973, c. C-15, sect. 2 [para. 13].

Landlord and Tenant Act, R.S.N.B. 1973, c. L-1, sect. 34(1)(c) [para. 17]; sect. 34(1)(e) [para. 16]; sect. 41, sect. 42 [paras. 10 and 19].

Counsel:

Marc A. Bosse, for the plaintiff;

C. Allison Mills, for the defendant, Archie Colpitts Ltd.

This case was heard at Moncton, N. B., before STRATTON, J., of the New Brunswick Supreme Court, Queen's Bench Division.

On December 14, 1976, STRATTON, J., delivered the following judgment: