Royal Bank of Canada v. G.L.B. Holdings Ltd. et al., (1998) 171 Sask.R. 139 (QB)

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 24, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 171 Sask.R. 139 (QB)

Royal Bank v. G.L.B. (1998), 171 Sask.R. 139 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. OC.019

Royal Bank of Canada (respondent/plaintiff) v. G.L.B. Holdings Limited, William Johnstone and Gordon Shabbits (applicants/defendants)

(1998 Q.B.G. No. 1948)

Indexed As: Royal Bank of Canada v. G.L.B. Holdings Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

September 24, 1998.

Summary:

The Royal Bank received a prejudgment garnishee for a guarantee against the appli­cant. The applicant applied for an order setting aside the garnishee summons before judgment issued and for an order directing all monies paid by the applicant into court be returned.

The Saskatchewan Court of Queen's Bench held that the material filed in support of the garnishee summons did not strictly comply with s. 3 of the Attachment of Debts Act and the garnishee summons was set aside. The court ordered all monies paid into court be paid out to the applicant at the expiration of the appeal period.

Creditors and Debtors - Topic 4204

Garnishment by creditor - General - Juris­diction - A bank sued to recover on a guarantee - The bank issued a prejudg­ment garnishee summons - The applicant sought to set it aside - The Saskatchewan Court of Queen's Bench stated that "[g]ar­nishment before judgment is an extraordi­nary remedy and failure to comply strictly with the provisions of the Act goes to jurisdic­tion and renders the garnishee summons a nullity".

Creditors and Debtors - Topic 4213

Garnishment by creditor - Application - Affidavit - Statutory requirements - A bank sued to recover on a guarantee - The bank issued a prejudgment garnishee sum­mons - The applicant sought to set it aside - The Saskatchewan Court of Queen's Bench only considered the material filed on the bank's original application - The court set aside the garnishee summons because the material filed did not strictly comply with s. 3 of the Attachment of Debts Act - There was no evidence that the bank had: declared the principle debtor in default; set forth the terms of the guar­antee; or demanded payment in accord­ance with the terms of the guarantee - All monies paid by the applicant into court were ordered returned when the appeal period expired.

Creditors and Debtors - Topic 4252

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

Creditors and Debtors - Topic 4385

Garnishment by creditor - Payment by garnishee into court - Payment out - Where proceedings invalid - [See Credi­tors and Debtors - Topic 4213 ].

Creditors and Debtors - Topic 4606

Garnishment by creditor - Practice - Setting aside - [See Creditors and Debtors - Topic 4213 ].

Cases Noticed:

McMeekin et al. v. Certified Concrete (Central) Ltd. and Royal Bank of Canada (1967), 58 W.W.R.(N.S.) 56 (Sask. Q.B.), refd to. [para. 3].

Mumford Medland Ltd. v. Certified Con­crete (Central) Ltd. and Royal Bank of Canada (1967), 59 W.W.R.(N.S.) 378 (Sask. C.A.), refd to. [para. 3].

Reed Ford Tractor Sales Ltd. v. Todorow­ich, [1995] 3 W.W.R. 259; 128 Sask.R. 90; 85 W.A.C. 90 (C.A.), refd to. [para. 3].

Canadian Imperial Bank of Commerce v. Grotsky et al. (1994), 120 Sask.R. 305; 85 W.A.C. 305 (C.A.), refd to. [para. 7].

Counsel:

Reginald A. Watson, for William John­stone;

David D. Kowalishen, for the respon­dent/plaintiff.

This application was heard by Gunn, J., of the Saskatchewan Court of Queen's Bench, who delivered the following judgment on September 24, 1998.