Royal Bank of Canada v. Ruben, (1980) 29 N.B.R.(2d) 612 (CA)

• Judge: Hughes, C.J.N.B., Limerick and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 08, 1980
• Jurisdiction: New Brunswick
• Citations: (1980), 29 N.B.R.(2d) 612 (CA)

Royal Bk. v. Ruben (1980), 29 N.B.R.(2d) 612 (CA);

    29 R.N.-B.(2e) 612; 66 A.P.R. 612

MLB headnote and full text

Sommaire et texte intégral

Royal Bank of Canada v. Ruben

(202/79/CA)

Indexed As: Royal Bank of Canada v. Ruben

Répertorié: Royal Bank of Canada v. Ruben

New Brunswick Court of Appeal

Hughes, C.J.N.B., Limerick and Ryan, JJ.A.

April 8, 1980.

Summary:

Résumé:

This case arose out of the plaintiff bank's action on a guarantee. The bank brought an action against the defendant on a guarantee, which required that the bank make a demand for payment before an action could be brought. The bank applied for judgment, on admissions but the New Brunswick Court of Queen's Bench, in a judgment reported 24 N.B.R.(2d) 707; 48 A.P.R. 707, dismissed the application, because the demand for payment under the guarantee was inadequate. Subsequently, the bank applied for leave to discontinue its action so that it might give a proper demand and bring another action. The defendant submitted that the action should be discontinued only upon the condition that no other action could be brought on the guarantee, because the matter was res judicata. The Court of Queen's Bench in a judgment reported 27 N.B.R.(2d) 637; 60 A.P.R. 637, granted leave to discontinue on condition that any subsequent action not rely upon the previous ineffectual demand, which was the only matter which was res judicata on the previous application. The defendant appealed.

The New Brunswick Court of Appeal dismissed the appeal and affirmed the judgment of the Court of Queen's Bench.

Practice - Topic 1338

Pleading - Issues - Conditions precedent - Pleading of - Rules of Court (N.B.), O. 19, rr. 14, 19 - A guarantee provided that before an action could be brought on the guarantee a demand for payment from the guarantor was required - The New Brunswick Court of Appeal held that in an action on the guarantee the defendant was required to plead that the requirement of a demand was not met, if it was to be relied upon as a defence - See paragraphs 15 to 19.

Practice - Topic 5559

Judgments - Judgment on admissions - Dismissal of application for judgment on admissions - Effect of - In an action on a guarantee the plaintiff applied for judgment on admissions - The application was dismissed, because no demand for payment was made as required by the guarantee - No appeal was taken - The plaintiff applied for leave to discontinue the action with the intention of making a proper demand and bringing another action - The defendant submitted that a discontinuance should be granted only on condition that no other action on the guarantee be permitted on the ground that the dismissal of the application for judgment on admission was a final disposition of the action - The New Brunswick Court of Appeal held that the dismissal of the application was not a final disposition of the action, because the plaintiff could still have proceeded to trial and proved its case by evidence other than the defendant's admissions - See paragraphs 21 to 24.

Practice - Topic 9809

Discontinuance - With leave - Rules of Court (N.B.), O. 26, r. 1 - The New Brunswick Court of Appeal held that a judge has a wide discretion on an application for leave to discontinue either to give leave on terms with respect to any subsequent action or to dismiss the action with costs - See paragraphs 11 to 14.

Practice - Topic 9811

- Discontinuance - With leave - Upon conditions - Rules of Court (N.B.), O. 26, r. 1 - The plaintiff brought an action against the defendant on a guarantee - The plaintiff applied for judgment on admissions, but the application was dismissed, because the demand for payment under the guarantee was inadequate - Subsequently, the plaintiff applied for leave to discontinue its action so that it might give a proper demand and bring another action - The defendant submitted that the action should be discontinued only upon the condition that no other action could be brought on the guarantee, because the matter was res judicata - The New Brunswick Court of Appeal affirmed the judgment of the Court of Queen's Bench granting leave to discontinue on condition that any subsequent action not rely upon the previous ineffectual demand, which was the only matter which was res judicata on the previous application - See paragraphs 7 to 9.

Cases Noticed:

Anglo-Canadian Mortgage Investment Corp. v. Shaw, [1921] 59 D.L.R. 152, appld. [para. 8].

Sentinel-Review Company Limited v. Robinson et al., [1928] S.C.R. 258, dist. [para. 9].

Schlund v. Foster (1908), 11 O.W.R. 175, dist. [para. 10].

Fox v. Star Newspaper Company, [1898] 1 Q.B.D. 636 (C.A.), affd. [1900] A.C. 19 (H.L.), appld. [para. 11].

Irving Oil Company Ltd. v. Miles Minit Car Wash Ltd. (1970), 2 N.B.R.(2d) 356, appld. [para. 12].

Attorney-General v. Great Eastern Railway Co. (1879), 48 L.J. Ch. 428; 5 App. Cas. 473, dist. [para. 22].

Statutes Noticed:

Rules of Court (N.B.), O. 19, rule 14, rule 19 [para. 18].

Counsel:

E.J. Mockler, for the appellant;

Richard Scott, for the respondent.

This case was heard on March 22, 1980, at Fredericton, N.B., before Hughes, C.J.N.B., Limerick and Ryan, JJ.A., of the New Brunswick Court of Appeal.

On April 8, 1980, Hughes, C.J.N.B., delivered the following judgment for the Court of Appeal: