Tompkins et al. v. Kentron Homes Ltd. and Hebenton and Butlin & Biggs, (1987) 78 A.R. 229 (QB)

• Judge: Feehan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 27, 1987
• Citations: (1987), 78 A.R. 229 (QB)

Tompkins v. Kentron Homes Ltd. (1987), 78 A.R. 229 (QB)

MLB headnote and full text

Douglas James Tompkins and Kathleen Marion Tompkins v. Kentron Homes Ltd., David James Hebenton and Dorothy Ann Hebenton (defendants) and James A. Butlin and R. Douglas Biggs, and the said James A. Butlin and R. Douglas Biggs, carrying on business as a partnership under the firm name and style of Butlin & Biggs, Barristers and Solicitors (third parties)

(No. 8201-12240)

Indexed As: Tompkins et al. v. Kentron Homes Ltd. and Hebenton and Butlin & Biggs

Alberta Court of Queen's Bench

Judicial District of Calgary

Feehan, J.

February 27, 1987.

Summary:

The Tompkins and the Hebentons were adjoining landowners. The land was subject to a restrictive covenant. The Hebentons agreed to sell their land to Kentron Homes and retained solicitors to remove the restrictive covenant from their land, to facilitate the sale. The Hebentons' solicitors obtained an ex parte order removing the restrictive covenant. The sale to Kentron Homes was completed. Two years later the Tompkins brought an action against Kentron Homes and the Hebentons for breach of contract of quasi-contract or, more specifically, breach of the restrictive covenant. The Tompkins claimed damages. The defendants joined the solicitors as third parties. The Tompkins alleged that the third parties were negligent and breached their duty to the Hebentons and thus were liable to the Tompkins.

The Alberta Court of Queen's Bench held that to succeed the Tompkins were required to establish that a restrictive covenant existed which was capable of being breached. The court stated that accordingly the ex parte order must be set aside. The Tompkins alleged that rule 158 was applicable to give the court jurisdiction to set aside the ex parte order.

The court, in the result, dismissed the Tompkins' action. The court held that rule 158 was inapplicable or, even if it applied, the court could not exercise its discretion and set aside the ex parte order. Accordingly, the restrictive covenant remained discharged and the Tompkins' action failed.

Sale of Land - Topic 4584

Restrictive covenants - Setting aside - Jurisdiction - Adjoining lands were subject to a restrictive covenant - To facilitate a sale of one parcel, the defendant owners obtained an ex parte order removing the restrictive covenant - An adjoining landowner knew of the application, but did not request notice nor did he apply to set aside or appeal the order - Two years later, however, the adjoining landowner sued the defendants for, inter alia, breach of the covenant - The Alberta Court of Queen's Bench held that the existence of the restrictive covenant was a condition precedent to the action, therefore the ex parte order must be set aside - The court refused to apply rule 158 to do so, or assuming rule 158 applied, refused in its discretion to set aside the order.

Words and Phrases

Any judgment entered upon default of defence or in pursuance of an order obtained ex parte - The Alberta Court of Queen's Bench held that this phrase, as found in rule 158 of the Alberta Rules of Court, did not give jurisdiction to the court to set aside an ex parte order removing a restrictive covenant.

Cases Noticed:

Tornado Developments Ltd. v. The Bay et al. (1979), 10 Alta. L.R.(2d) 279 (Q.B.), refd to. [para. 15].

Seifeddine v. Hudson's Bay Traders et al. (1978), 16 A.R. 252; 8 Alta. L.R.(2d) 253 (S.C.T.D.), refd to. [para. 15].

Seifeddine v. Hudson's Bay Traders et al. (1980), 22 A.R. 111; 11 R.P.R. 224 (Alta. C.A.), refd to. [para. 15].

Webmor Financial Services Ltd. v. J.M. Drummond Holdings Ltd. et al. (1981), 33 A.R. 493, refd to. [para. 23].

Raimundo and Von Steffens v. Huculak (1979), 15 A.R. 352; 8 Alta. L.R.(2d) 330 (D.C.), refd to. [para. 23].

Re Daniels (1980), 14 Alta. L.R.(2d) 209, refd to. [para. 24].

R. v. Wilson, [1984] 1 W.W.R. 481; 51 N.R. 321, refd to. [para. 26].

R. v. Cass (1985), 71 A.R. 248, refd to. [para. 26].

R. v. Avery, [1986] N.W.T.R. 359, refd to. [para. 26].

Arbutus Park Estates Ltd. v. Fuller et al. (1976), 74 D.L.R.(3d) 257 (B.C.S.C.), not appld. [para. 27].

Wrotham Park v. Parkside Homes, [1974] 1 W.L.R. 798 (Ch. D.), not appld. [para. 27].

Statutes Noticed:

Rules of Court (Alta.), rule 158 [paras. 22-26, 28]; rule 387(2) [para. 31].

Land Titles Act, R.S.A. 1980, c. L-5, sect. 52(3) [paras. 12, 15, 22].

Authors and Works Noticed:

Stevenson and Côté, Annotation of the Alberta Rules of Court (1981), pp. 181-182 [para. 24].

Stevenson and Côté, Annotation of the Alberta Rules of Court (2nd Supp. 1984), pp. 2-93 [para. 24].

Counsel:

A.G. Park, Q.C., for the plaintiffs;

Grant N. Stapon, for the defendants;

J.P. Peacock, for the third parties.

This action was heard before Feehan, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, whose decision was delivered at Edmonton, Alberta, on February 27, 1987.