Scotia Mortgage Corp. v. Fogarty, 2016 NSSC 52

Judge:Smith, J.
Court:Supreme Court of Nova Scotia
Case Date:December 21, 2015
Jurisdiction:Nova Scotia
Citations:2016 NSSC 52;(2016), 370 N.S.R.(2d) 164 (SC)
 
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Scotia Mortgage Corp. v. Fogarty (2016), 370 N.S.R.(2d) 164 (SC);

    1165 A.P.R. 164

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Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.063

Scotia Mortgage Corporation (plaintiff) v. James Vincent Fogarty (defendant)

(Hfx. No. 429787; 2016 NSSC 52)

Indexed As: Scotia Mortgage Corp. v. Fogarty

Nova Scotia Supreme Court

Smith, J.

February 17, 2016.

Summary:

The plaintiff, Scotia Mortgage Corp., brought a motion to assess a deficiency judgment pursuant to Civil Procedure Rule 72.12.

The Nova Scotia Supreme Court did not approve $4,395.88 of the amount claimed for protective disbursements. The court deducted that amount from the amount of $49,621.18 claimed by the plaintiff and awarded the plaintiff a deficiency judgment in the amount of $45,225.30.

Mortgages - Topic 5553

Mortgage actions - Foreclosure and sale - Deficiency judgment - Calculation of deficiency - Where mortgagee buys property at sale - [See Mortgages - Topic 5554 ].

Mortgages - Topic 5554

Mortgage actions - Foreclosure and sale - Deficiency judgment - Protective disbursements - The plaintiff mortgagee commenced a foreclosure action against the defendant - The plaintiff bought the property at auction - The plaintiff brought a motion to assess a deficiency judgment pursuant to Civil Procedure Rule 72.12 - The Nova Scotia Supreme Court stated that the obligation was on the mortgagee to provide the court with evidence which would allow the court to determine that the expenses claimed were properly and reasonably incurred - Section 3.3. of Practice Memorandum No. 1 (dealing with motions for deficiency judgments or distribution of surplus) stated that "The originals or true copies of all invoices or receipts from all independent suppliers of goods, materials, and services relating to the claim must be filed with the court for inspection ..." - The plaintiff chose to have the deficiency assessed without producing or seeking disclosure of invoices from independent suppliers of materials and services that it knew existed - While the court had the discretion to estimate expenses in appropriate circumstances, it was not prepared to do that in this case where the court's Practice Memorandum required disclosure of the invoices in question, the plaintiff's solicitor was aware that the invoices existed, and the decision had been made not to obtain the invoices and put them before the court - The plaintiff had claimed a deficiency judgement in the amount of $49,621.18 - The court deducted from that figure $4,395.88 for the protective disbursements that it did not approve - The court awarded the plaintiff a deficiency judgment in the amount of $45,225.30.

Cases Noticed:

Royal Bank of Canada v. Marjen Investments Ltd. et al. (1998), 164 N.S.R.(2d) 293; 491 A.P.R. 293; 1998 NSCA 37 (C.A.), refd to. [para. 16].

Central Trust Co. v. Adshade et al. (1983), 60 N.S.R.(2d) 414; 128 A.P.R. 414 (C.A.), refd to. [para. 16].

CIBC Mortgages Inc. v. Samson- Hahn, [2015] N.S.R.(2d) Uned. 80; 2015 NSSC 149, refd to. [para. 19].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 72.13(2) [para. 17].

Counsel:

Joshua J. Santimaw, for the plaintiff;

James Vincent Fogarty, did not appear;

Stephen Kingston, for Veranova Properties Limited (non party).

This motion was heard on August 20 and December 21, 2015, and February 9, 2016, in Halifax, N.S., before Smith, J., of the Nova Scotia Supreme Court. Final written submissions were received on January 19 and February 3, 2016. Smith, J., delivered the following decision orally on February 17, 2016 and in writing on February 24, 2016.

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