Trans Canada Credit Corp. v. Morehouse, (1997) 193 N.B.R.(2d) 308 (TD)

• Judge: Russell, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 08, 1997
• Jurisdiction: New Brunswick
• Citations: (1997), 193 N.B.R.(2d) 308 (TD)

Trans Can. Credit v. Morehouse (1997), 193 N.B.R.(2d) 308 (TD);

    193 R.N.-B.(2e) 308; 493 A.P.R. 308

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1997] N.B.R.(2d) TBEd. DE.024

Trans Canada Credit Corporation, a body corporate (plaintiff) v. Theresa Morehouse (defendant)

(F/C/317/97)

Indexed As: Trans Canada Credit Corp. v. Morehouse

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Russell, J.

October 8, 1997.

Summary:

In 1992, spouses executed a promissory note and also a collateral mortgage as secu­rity for a loan. The spouses separated. The husband was bankrupt and the wife remained in the home. The lender sued the wife on the note. Additionally, a mortgage sale was imminent. The wife defended the note action by pleading coercion and undue influence by her husband and lack of independent legal advice. The action on the note and mortgage action were intertwined. The wife applied for an interlocutory injunction to restrain the mortgage sale.

The New Brunswick Court of Queen's Bench, Trial Division, granted an injunction restraining the sale pending the determina­tion in the action on the note. There was a serious issue to be tried, the wife would suffer irreparable harm if the home were sold and she was successful in defending the note action and, finally, the balance of con­venience favoured granting an injunction.

Injunctions - Topic 1606

Interlocutory or interim injunctions - Gen­eral principles - Balance of conveni­ence - In 1992, spouses executed a prom­issory note and also a collateral mortgage as security for a loan - The spouses sep­arated - The husband was bankrupt and the wife remained in the home - The lender sued the wife on the note - Addi­tionally, a mortgage sale was imminent - The wife defended the note action by pleading coer­cion and undue influence by her husband and lack of independent legal advice - The action on the note and mort­gage action were intertwined - The wife applied for an interlocutory injunction to restrain the mortgage sale - The New Brunswick Court of Queen's Bench, Trial Division, granted an injunction restraining the sale pending the determination in the action on the note - There was a serious issue to be tried, the wife would suffer irreparable harm if the home were sold and she was successful in defending the note action and, finally, the balance of conveni­ence favoured granting an injunction.

Injunctions - Topic 1616

Interlocutory or interim injunctions - Gen­eral principles - Arguable issues of law or serious question to be tried - [See In­junctions - Topic 1606 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Re­quirement of irreparable injury - What constitutes - [See Injunctions - Topic 1606 ].

Cases Noticed:

Metropolitan Stores (MTS) Ltd. v. Man­itoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 18 C.P.C.(2d) 273; 38 D.L.R.(4th) 321; 25 Admin. L.R. 20; [1987] 3 W.W.R. 1, consd. [para. 7].

American Cyanamid Co. v. Ethicon Ltd., [1975] 1 All E.R. 504; [1975] A.C. 396 (H.L.), consd. [para. 7].

Canada East Manufacturing Inc. v. Harvey and Maritime Wire Co. (1996), 183 N.B.R.(2d) 293; 465 A.P.R. 293 (C.A.), refd to. [para. 13].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114, refd to. [para. 13].

Calvert v. Municipal Mortgage Corp. (1967), 147 N.B.R.(2d) 161; 375 A.P.R. 161 (C.A.), refd to. [para. 19].

Daley et al. v. Petro Canada et al. (1994), 153 N.B.R.(2d) 164; 392 A.P.R. 164 (T.D.), refd to. [para. 19].

Authors and Works Noticed:

Lamek, Special Lectures, Law Society of Upper Canada (1981), p. 128 [para. 12].

Counsel:

Brent Melanson and Peter Adams, for the plaintiff;

William K. Lebans, Q.C., for the defen­dant.

This application was heard on October 8, 1997, before Russell, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Fredericton, whose following oral judgment was delivered on October 8, 1997 and filed on October 22, 1997.