Sullivan v. Sullivan, (1991) 128 A.R. 241 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 18, 1991
• Citations: (1991), 128 A.R. 241 (QBM)

Sullivan v. Sullivan (1991), 128 A.R. 241 (QBM)

MLB headnote and full text

Phyllis Caroline Sullivan (plaintiff) v. William Francis Sullivan (defendant)

(Action No. 8803 24931)

Indexed As: Sullivan v. Sullivan

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

September 18, 1991.

Summary:

The plaintiff applied for summary judg­ment for her claim and dismissal of the counterclaim against her.

A Master in Chambers of the Alberta Court of Queen's Bench dismissed the appli­cation.

Courts - Topic 2121

Jurisdiction - Trial jurisdiction - General - A Master of the Alberta Court of Queen's Bench stated that a trial court's jurisdiction is limited to adjudicating on the issues raised by the parties in their pleadings - See paragraph 23.

Executors and Administrators - Topic 5204

Actions by and against representatives - Actions against executors - Personal lia­bility - General - A Master of the Alberta Court of Queen's Bench held that an estate is not liable for the personal liabilities of an executor - The estate's liabilities are those only of the deceased - See para­graph 21.

Practice - Topic 125

Persons who can sue and be sued - Estates - Proper representative - A Master of the Alberta Court of Queen's Bench held that a person's claim against an estate cannot be visited on the beneficiaries - An es­tate's liabilities are not the beneficiaries' liabilities - See paragraph 27.

Practice - Topic 1845

Pleadings - Counterclaim and set-off - Set-off - Requirement of mutuality - A Master of the Alberta Court of Queen's Bench held that if a cross-claim is not recoverable by action at the time that it is set up it cannot be a defence of set-off - A cross-claim that is not supportable in law for whatever reason at the time that it is advanced obviously cannot be a defence - See paragraph 36.

Practice - Topic 1846

Pleadings - Counterclaim and set-off - Set-off - Legal set-off v. equitable set-off - A Master of the Alberta Court of Queen's Bench held that set-off as a defence must be legal or equitable set-off - Legal set-off is the result of statutes - See paragraphs 31 to 35.

Practice - Topic 1847

Pleadings - Counterclaim and set-off - Set-off - Against assignee of chose in action - A Master of the Alberta Court of Queen's Bench held that where there has been an assignment of the debt a cross-claim which arises after the assignment cannot be set off against the assignee - In that situation, the assignment destroys the mutuality required by the English statutes (1728, 2 Geo. 2, c. 22 and 1734, 8 Geo. 2, c. 24) - An assignment of a debt does not necess­arily destroy mutuality - If the mutuality arose before the assignment the assignment does not destroy it - See para­graphs 32 to 40.

Practice - Topic 1848

Pleadings - Counterclaim and set-off - Set-off - Liquidated demand v. claim for unliquidated demand - A Master of the Alberta Court of Queen's Bench held that a claim for money had and received or for conversion of money was a liquidated claim - See paragraphs 43 to 52.

Cases Noticed:

Creditel of Canada Ltd. v. Terrace Cor­poration (Construction) Ltd. and Terrace Inn (1983), 50 A.R. 311 (C.A.), refd to. [para. 23].

McDonald v. Fellows, Doherty Bros. Realty Ltd. and Wilkinson (1979), 17 A.R. 330; 105 D.L.R.(3d) 434 (C.A.), refd to. [para. 23].

Abacus Cities v. Aboussafy (1981), 29 A.R. 607 (C.A.), refd to. [para. 31].

Telford v. Holt (1987), 78 N.R. 321; 81 A.R. 385; 54 Alta. L.R.(2d) 193 (S.C.C.), refd to. [para. 31].

Kaps Transport Ltd. v. McGregor Tele­phone & Power Construction Company Limited (1970), 73 W.W.R.(N.S.) 549, refd to. [para. 35].

Atlantic Acceptance Corporation Limited v. Burns & Dutton Construction (1962) Ltd., [1971] 1 W.W.R. 84, refd to. [para. 35].

Springer Development Corp. Ltd. v. Alberta Mortgage and Hou­sing Corp. (1987), 79 A.R. 368 (Q.B.), refd to. [para. 37].

Canadian Imperial Bank of Commerce v. Tuckerr Industries Inc., [1983] 5 W.W.R. 602 (B.C.C.A.), refd to. [para. 41].

Paine (J.R.) and Associates v. Cairns (1988), 82 A.R. 323 (Q.B.), refd to. [para. 45].

Lyons Brimacombe v. Kemeridis (1991), 110 A.R. 6, refd to. [para. 55].

Statutes Noticed:

Judicature Act, R.S.A. 1980, c. J-1, sect. 21(1) [para. 28].

Statute of Set-off, 1728, 2 Geo. 2, c. 22 [para. 32].

Statute of Set-off, 1734, 8 Geo. 2, c. 24 [para. 32]; sect. 5 [para. 34].

Authors and Works Noticed:

Jowitt's Dictionary of English Law [para. 48].

Counsel:

Bryan & Wilson, for the plaintiff;

Nickerson, Roberts & Hilborn, for the defendant.

This application was heard before Funduk, Master in Chambers of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, whose decision was delivered on Sep­tember 18, 1991.