Singer v. Sommex Maritime Ltd., (1996) 148 N.S.R.(2d) 118 (SC)

• Judge: Davison, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 13, 1995
• Jurisdiction: Nova Scotia
• Citations: (1996), 148 N.S.R.(2d) 118 (SC)

Singer v. Sommex Maritime Ltd. (1996), 148 N.S.R.(2d) 118 (SC);

  429 A.P.R. 118

MLB headnote and full text

David Singer (plaintiff) v. Sommex Maritime Ltd., a body corporate (defendant)

(S.H. No. 94-33)

Indexed As: Singer v. Sommex Maritime Ltd.

Nova Scotia Supreme Court

Davison, J.

January 17, 1996.

Summary:

Empire Headboard Co. provided various goods to Sommex Maritime throughout the years. In 1993, Empire forwarded 176 beds to Sommex for $7,922.28. The amount was never paid. Empire assigned the account to Singer. Singer sued Sommex for the out­standing amount. Sommex sought to set off the debt against other poor and unmerchantable quality goods Sommex alleged it received from Empire over the years. Singer sought summary judgment.

The Nova Scotia Supreme Court granted Singer summary judgment; however, ordered that it be stayed until it was determined whether Sommex was entitled to equitable set-off on the one shipment on which Sing­er's claim was based.

Practice - Topic 1846

Pleadings - Counterclaim and set-off - Legal set-off v. equitable set-off - The Nova Scotia Supreme Court stated that a "right of set-off may arise by agreement, at law or in equity" - Where there is no agreement for a set-off, there must be present two conditions - "The conditions are that both obligations must be debts and the debts must be 'mutual cross obli­gations'" - For a set-off in equity, how­ever, there need not be mutuality, nor do the cross obligations have to be debts - Rather, provided that the sum arose out of the same contract, or interrelated contracts, the set-off will be allowed - See para­graphs 14 and 15.

Practice - Topic 1850

Pleadings - Counterclaim and set-off - Equitable set-off - The Nova Scotia Supreme Court referred to the following principles respecting equitable set-off: (i) the party relying on a set-off must show some equitable ground for being protected against his adversary's demands; (ii) the equitable ground must go to the very root of the plaintiff's claim before a set-off will be allowed; (iii) a cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim; (iv) the plaintiff's claim and the cross-claim need not arise out of the same contract; and (v) unliquidated claims are on the same footing as liquidated claims - See paragraph 16.

Practice - Topic 1850

Pleadings - Counterclaim and set-off - Equitable set-off - The Nova Scotia Supreme Court reviewed the law respect­ing equitable set-off - See paragraphs 12 to 26.

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available - In discussing the application of Nova Scotia Civil Procedure Rule 13.01 relating to summary judgments, the Nova Scotia Supreme Court stated that before summary judgment will be awarded, the court must "be satisfied there is no defence and no fairly arguable point to be argued on behalf of the defendant" - See paragraph 8.

Practice - Topic 5705

Judgments and orders - Summary judg­ments - Requirement that question at issue be beyond doubt - [See Practice - Topic 5702 ].

Practice - Topic 5706

Judgments and orders - Summary judg­ments - Counterclaim or set-off - Effect of - Empire Headboard Co. provided various goods to Sommex Maritime throughout the years - In 1993, Empire forwarded 176 beds to Sommex for $7,922.28 - The amount was never paid - Empire assigned the account to Singer - Singer sued Sommex for the outstanding amount - Sommex sought to set off the debt against other poor and unmer- chantable quality goods Sommex alleged it received from Empire over the years - Singer sought summary judgment - The Nova Scotia Supreme Court granted Singer summary judgment; however, ordered that it be stayed until it was deter­mined whether Sommex was entitled to equitable set-off on the one shipment on which Singer's claim was based.

Cases Noticed:

Potter (Carl B.) Ltd. v. Antil Canada Ltd. and Mercantile Bank of Canada (1976), 15 N.S.R.(2d) 408; 14 A.P.R. 408 (C.A.), refd to. [para. 8].

Royal Bank v. Malouf, [1932] 2 W.W.R. 526 (Sask. C.A.), refd to. [para. 8].

Montreal Trust Co. of Canada v. Quad-Ram Development Group Ltd. et al. (1994), 136 N.S.R.(2d) 333; 388 A.P.R. 333 (C.A.), refd to. [para. 9].

Featherstonhaugh v. Featherstonhaugh, [1939] 2 D.L.R. 262 (Ont. C.A.), refd to. [para. 9].

Lunenburg County Press Ltd. v. Deamond (1977), 18 N.S.R.(2d) 689; 20 A.P.R. 689 (C.A.), refd to. [para. 9].

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385; 54 Alta. L.R.(2d) 193; 21 C.P.C.(2d) 1; 46 R.P.R. 234; 41 D.L.R.(4th) 385; 37 B.L.R. 241, refd to. [para. 14].

Coba Industries Ltd. v. Millie's Holdings (Can.) Ltd. (1985), 20 D.L.R.(4th) 689 (B.C.C.A.), refd to. [para. 16].

Federal Commerce and Navigation Co. v. Molena Alpha Inc., [1978] 3 W.L.R. 309 (C.A.), refd to. [para. 17].

Gruza v. Kozak; Saskatchewan Valley Credit Union Ltd. v. Gruza (1989), 80 Sask.R. 197; 63 D.L.R.(4th) 129 (C.A.), refd to. [para. 18].

Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 D.L.R.(4th) 686 (Ont. H.C.), refd to. [para. 19].

Hanak v. Green, [1958] 2 All E.R. 141 (C.A.), refd to. [para. 19].

Agway Metals Inc. v. Dufferin Roofing Ltd. (1991), 46 C.P.C.(2d) 133 (Ont. Gen. Div.), refd to. [para. 21].

Chet's Transport Inc. v. Seaway Distribu­tors Ltd. (1985), 69 N.S.R.(2d) 88; 163 A.P.R. 88 (T.D.), refd to. [para. 23].

Purdy v. Fulton Insurance Agencies Ltd. (1991), 105 N.S.R.(2d) 421; 284 A.P.R. 421 (C.A.), refd to. [para. 23].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 3.04 [para. 6]; rule 13.01 [para. 7]; rule 14.20 [para. 13].

Counsel:

Michelle Awad, for the plaintiff;

Raffi Balmanoukian, for the defendant.

This application was heard on December 13, 1995, at Halifax, Nova Scotia, before Davison, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 17, 1996.