Senft and Hicks v. Bank of Montreal, Twilight Trucking Ltd. and Senft, (1986) 69 A.R. 35 (QB)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 05, 1986
• Citations: (1986), 69 A.R. 35 (QB)

Senft v. Bk. of Mtrl. (1986), 69 A.R. 35 (QB)

MLB headnote and full text

Tremaine, Deputy Sheriff (applicant) and Wilf Senft and Hicks (plaintiffs) v. Bank of Montreal, Twilight Trucking Ltd. and Dan Senft (defendants)

(No. 8603 01197)

Indexed As: Senft and Hicks v. Bank of Montreal, Twilight Trucking Ltd. and Senft

Alberta Court of Queen's Bench

Judicial District of Edmonton

Miller, A.C.J.

March 5, 1986.

Summary:

Senft owned a truck that was subject to a chattel mortgage in favour of the Bank of Montreal. Senft leased his truck to Twilight and received a fee based on the amount of freight he hauled. Twilight paid for truck repairs on behalf of Senft and was to be reimbursed from the fees. Senft owed Twilight separate amounts of $7,835.42 and $2,447.58 for repairs paid for by Twilight. The truck was seized and sold by the chattel mortgagee and the sales proceeds were paid into court. Twilight claimed priority on the ground that it had a garagemen's, possessory or general lien.

The Alberta Court of Queen's Bench held that the chattel mortgagee had priority pursuant to the Bills of Sale Act, because Twilight's possession of the truck was merely a pledge as security for the debt.

Bailment - Topic 9303

Pledges - What constitute - The Alberta Court of Queen's Bench held that a pledge requires that (1) the subject matter be goods or chattels; (2) the goods or chattels be delivered; (3) the delivery be to a creditor of the pledgor to secure his debt; and (4) the goods or chattels be kept by the creditor until the debt is discharged - The court distinguished between a pledge and a general lien - See paragraphs 15 to 17.

Bailment - Topic 9303

Pledges - What constitute - A paid for repairs to B's truck under a lease agreement - B was to reimburse A for the repairs, but did not - A took possession of the truck with B's authorization - The Alberta Court of Queen's Bench held that A's interest in the truck was a pledge serving as security for the repair debt and not a general lien - See paragraphs 15 to 17.

Chattel Mortgages and Bills of Sale - Topic 3646

Lien or charge - Floating charge - Priorities - Chattel mortgage v. pledge - The Alberta Court of Queen's Bench held that a prior registered chattel mortgage took priority over a pledge under the Bills of Sale Act - The court stated that a pledge was a mortgage within the meaning of s. 1(i) of the Act, therefore the prior registered chattel mortgage took priority - See paragraphs 18 to 19.

Liens - Topic 804

General lien - Nature of - The Alberta Court of Queen's Bench stated that the common law general lien was founded on custom or specific contract; that it was a lien upon any personal property for a general debt or account due to the person claiming it - The court stated that it operated as a form of floating charge upon any personal property of the person who owes the account, which is in the hands of the lien claimant - See paragraph 15.

Liens - Topic 805

General lien - When available - A paid for repairs to B's truck under a lease agreement - B was to reimburse A for the repairs, but did not - A took possession of the truck with B's authorization - The Alberta Court of Queen's Bench held that A's interest in the truck was a pledge serving as security for the repair debt and not a general lien - See paragraphs 15 to 17.

Liens - Topic 2053

Particular or possessory lien - Creation at common law - When available - A paid for repairs to B's truck - B was to compensate A - A remained unpaid and took possession of the truck with B's authorization and claimed that it had a possessory or particular lien - The Alberta Court of Queen's Bench held that A did not have a possessory or particular lien, because A was not an artisan, workman, tradesman or mechanic who in the course of his trade bestowed skill, labour or money upon a chattel with the express or implied authority of the owner - See paragraphs 12 to 13.

Liens - Topic 2076

Particular or possessory lien - Creation by statute - General - Section 2 of the Possessory Liens Act provided that "a person has a particular lien for the payment of his debt on a chattel on which he has expended his money, labour or skill at the request of the owner of it and thereby enhanced its value" - The Alberta Court of Queen's Bench held that s. 2 did not create the lien, it merely gave a right of sale to the lienholder - The court held that a lien claimant still had to establish a common law right to a lien - See paragraphs 9 to 11.

Liens - Topic 8303

Garagemen's lien - When available - A paid for repairs to B's truck - B was to compensate A - A took possession from the repair shop and claimed a garagemen's lien - The Alberta Court of Queen's Bench held that A did not have a garagemen's lien, because there was no lienable interest to assign where the repair shop was paid and, in any event, a legal lien was an unassignable personal right - See paragraph 8.

Cases Noticed:

Continental Bank of Canada v. Henry Mogensen Transport Ltd. (1984), 54 A.R. 27 (Q.B.M.C.), refd to. [para. 10].

Alberta Drilling and Development Company Limited v. Lethbridge Iron Works Company Limited, [1947] 1 W.W.R. 983 (Alta. P.C.), refd to. [para. 10].

Sterling Securities Corporation, Limited v. Hicks Motor Company Limited, [1928] 2 W.W.R. 74 (Sask. C.A.), refd to. [para. 12].

Adanac Tire and Retreaders Ltd. v. Sheriff of the Judicial District of Edmonton (1979), 17 A.R. 147; 9 Alta. L.R.(2d) 66, appld. [para. 16].

Statutes Noticed:

Bills of Sale Act, R.S.A. 1980, c. B-5, sect. 1(i), sect. 2(1) [para. 18].

Garagemen's Lien Act, R.S.A. 1980, c. G-1.

Possessory Liens Act, R.S.A. 1980, c. P-13, sect. 2, sect. 5, sect. 14 [para. 9].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 28, paras. 516, 518 [para. 15]; 537 [para. 13].

Macklem and Bristow, Construction and Mechanics' Liens in Canada (5th Ed.), p. 579 [para. 12].

Counsel:

Hallgren & Allen, for the plaintiff, Wilf Senft;

J.F. McGinnis, for the respondent, Bank of Montreal;

Frohlich, Irwin & Rand, for the respondent, Twilight Trucking Ltd.;

Zalapski & Pahl, for the respondent, Dan J. Senft.

This application was heard before Miller, A.C.J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 5, 1986.