Scotia Mortgage Corp. v. Fogarty, 2016 NSSC 52

JudgeSmith, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateDecember 21, 2015
JurisdictionNova Scotia
Citations2016 NSSC 52;(2016), 370 N.S.R.(2d) 164 (SC)

Scotia Mortgage Corp. v. Fogarty (2016), 370 N.S.R.(2d) 164 (SC);

    1165 A.P.R. 164

MLB headnote and full text

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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3 practice notes
  • Bank of Nova Scotia v. Hatcher, 2017 NSSC 257
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • September 27, 2017
    ...in rulings on several motions for deficiency judgment, Associate Chief Justice Smith’s decision in Scotia Mortgage Corporation v. Fogarty, 2016 NSSC 52 did not establish principles of law, so much as it undermined the credibility of property managers. Therefore, I refused to include in the ......
  • Toronto-Dominion Bank v. Coombs, 2016 NSSC 263
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • October 6, 2016
    ...aware of this court's decisions in CIBC Mortgages v. Samson-Hahn 2015 NSSC 149, released May 25, 2015; and Scotia Mortgage v. Fogarty 2016 NSSC 52, released February 24, 2016. Those cases dealt with the particulars of protective disbursements and the evidence required. The applicant be......
  • Bank of Montreal v. Dukeshire, 2019 NSSC 58
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • February 14, 2019
    ...us to what I will refer to as the low point in proceedings relating to deficiency judgments – Scotia Mortgage Corporation v. Fogarty, 2016 NSSC 52. Again, the management company was Veranova Properties Limited. The evidence established that Veranova had retained independent contractors to w......
3 cases
  • Bank of Nova Scotia v. Hatcher, 2017 NSSC 257
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • September 27, 2017
    ...in rulings on several motions for deficiency judgment, Associate Chief Justice Smith’s decision in Scotia Mortgage Corporation v. Fogarty, 2016 NSSC 52 did not establish principles of law, so much as it undermined the credibility of property managers. Therefore, I refused to include in the ......
  • Toronto-Dominion Bank v. Coombs, 2016 NSSC 263
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • October 6, 2016
    ...aware of this court's decisions in CIBC Mortgages v. Samson-Hahn 2015 NSSC 149, released May 25, 2015; and Scotia Mortgage v. Fogarty 2016 NSSC 52, released February 24, 2016. Those cases dealt with the particulars of protective disbursements and the evidence required. The applicant be......
  • Bank of Montreal v. Dukeshire, 2019 NSSC 58
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • February 14, 2019
    ...us to what I will refer to as the low point in proceedings relating to deficiency judgments – Scotia Mortgage Corporation v. Fogarty, 2016 NSSC 52. Again, the management company was Veranova Properties Limited. The evidence established that Veranova had retained independent contractors to w......

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