Triathlon Leasing Inc. v. Juniberry Corp. and Hong, (1995) 157 N.B.R.(2d) 217 (CA)

• Judge: Rice, Ryan and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 19, 1995
• Jurisdiction: New Brunswick
• Citations: (1995), 157 N.B.R.(2d) 217 (CA);1995 CanLII 6225 (NB CA);157 NBR (2d) 217;[1995] NBJ No 36 (QL);404 APR 217

Triathlon Leasing v. Juniberry (1995), 157 N.B.R.(2d) 217 (CA);

    157 R.N.-B.(2e) 217; 404 A.P.R. 217

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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Juniberry Corp., a body corporate and Ping Ben Hong (defendants/appellants) v. Triathlon Leasing Inc. (plaintiff/respondent)

(43/94/CA)

Indexed As: Triathlon Leasing Inc. v. Juniberry Corp. and Hong

New Brunswick Court of Appeal

Rice, Ryan and Turnbull, JJ.A.

January 19, 1995.

Summary:

Triathlon leased equipment to Juniberry. Hong guaranteed Juniberry's rental payments. Juniberry defaulted on the rental payments. Triathlon seized and sold the equipment and sued Juniberry and Hong for the deficiency.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 145 N.B.R.(2d) 24; 372 A.P.R. 24, allowed Triathlon's action. Juniberry and Hong ap­pealed.

The New Brunswick Court of Appeal allowed the appeal and remitted the matter to the trial judge for determination on the basis of amended pleadings.

Conditional Sales - Topic 2146

Seller's remedies - Repossession and sale - Claim for deficiency - Effect of failure to comply with statute - Triathlon leased equipment to Juniberry - Hong guaranteed Juniberry's rental payments - Juniberry defaulted - Triathlon sold the equipment and sued Juniberry and Hong (the defend­ants) for the deficiency - At trial, without any prior notice, defendants' counsel moved to amend the defence to plead the Conditional Sales Act - The trial judge declined to permit the amendment and gave judgment for Triathlon - The de­fendants appealed claiming they had been deprived of a defence because Triathlon failed to comply with the Act's require­ments regarding sale and claim for a defi­ciency - The New Brunswick Court of Appeal allowed the appeal and remitted the matter to the trial judge - Turnbull, J.A., would have dismissed Triathlon's action - See paragraphs 44 to 49.

Evidence - Topic 2231

Special modes of proof - Judicial notice - Statutes - Triathlon leased equipment to Juniberry - Hong guaranteed Juniberry's rental payments - Juniberry defaulted - Triathlon sold the equipment and sued Juniberry and Hong (the defendants) for the deficiency - At trial, without any prior notice, defendants' counsel moved to amend the defence to plead the Condi­tional Sales Act - The trial judge declined to permit the amendment and gave judg­ment for Triathlon - The defendants ap­pealed claiming they had been deprived of a defence because Triathlon failed to com­ply with the Act - The New Brunswick Court of Appeal allowed the appeal - Turnbull, J.A., observed that "[a]n Act which is declaratory of the general law need not be pleaded unless the Act con­tains provisions which require that it must be specifically pleaded" - See paragraph 39.

Practice - Topic 1312

Pleadings - Questions of law - Pleading foreign law - Triathlon leased equipment to Juniberry - Hong guaranteed Juniberry's rental payments - Juniberry defaulted - Triathlon sold the equipment and sued Juniberry and Hong (the defendants) for the deficiency - At trial, without any prior notice, defendants' counsel moved to amend the defence to plead the Condi­tional Sales Act - Triathlon claimed that under the terms of the lease, the laws of Ontario were applicable - How­ever, Triathlon had neither pleaded the applic­ability of Ontario's laws nor proved how they differed from New Brunswick's - The trial judge declined to permit the amend­ment and gave judgment for Triathlon - The defendants appealed - The New Brunswick Court of Appeal allowed the appeal - Turnbull, J.A., observed that the laws of New Brunswick were appli­cable - See paragraph 27.

Practice - Topic 1619

Pleadings - The defence - Pleading stat­utes - Triathlon leased equipment to Juni­berry - Hong guaranteed Juniberry's rental payments - Juniberry defaulted on the rental payments - Triathlon seized and sold the equipment and sued Juniberry and Hong (the defendants) for the deficiency - At trial, without any prior notice, defen­dants' counsel moved to amend the defence to plead the Conditional Sales Act - The New Brunswick Court of Queen's Bench, Trial Division, refused to allow the amendment where neither the Act, nor the specific sections were pleaded and gave judgment for Triathlon - The defendants appealed - The New Brunswick Court of Appeal allowed the appeal, ordered that the pleadings be amended and remitted the matter to the trial judge for determination, with the right of the parties to submit additional evidence.

Practice - Topic 1628

Pleadings - The defence - Defences which must be pleaded - [See Practice - Topic 1619 ].

Practice - Topic 2117

Pleadings - Amendment of pleadings - To plead a statute - [See Practice - Topic 1619 ].

Cases Noticed:

Moore v. State Farm Fire & Casualty Co. (1982), 42 N.B.R.(2d) 667; 110 A.P.R. 667 (C.A.), refd to. [para. 31].

R. v. Steam Tanker Evgenia Chandris, [1977] 2 S.C.R. 97; 8 N.R. 338; 12 N.B.R.(2d) 652; 10 A.P.R. 652, consd. [para. 41].

Canadian Acceptance Corp. v. Melanson (1976), 15 N.B.R.(2d) 129; 18 A.P.R. 129 (C.A.), refd to. [para. 48].

General Motors Acceptance Corp. of Can­ada Ltd. v. Oakes and Oakes (1977), 18 N.B.R.(2d) 569; 26 A.P.R. 569 (C.A.), refd to. [para. 48].

Statutes Noticed:

Conditional Sales Act, R.S.N.B. 1973, c. C-15, sect. 1(b) [para. 24]; sect. 15 [para. 11]; sect. 15(4) [para. 46].

Evidence Act, R.S.N.B. 1973, c. E-11, sect. 70(1)(e) [para. 40].

Interpretation Act, R.S.N.B. 1973, c. I-13, sect. 4 [para. 39].

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, generally [para. 39].

Rules of Court (N.B.), rule 2.02 [para. 29]; rule 27.06(14) [paras. 18, 33]; rule 27.10(1) [para. 22].

Statute of Frauds, R.S.N.B. 1973, c. S-14, generally [para. 39].

Authors and Works Noticed:

Castel, J.G., Canadian Conflict of Laws (2nd Ed. 1986), pp. 139, 141 to 145 [para. 28]; 146 [para. 27].

Sopinka, John, Lederman, Sidney N. and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 983 to 984 [para. 42].

Counsel:

Peter Beardsworth, for the appellants;

Michael A. McWilliam, for the respondent.

This appeal was heard on June 22, 1994, before Rice, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal.

On January 19, 1995, the decision of the Court of Appeal was delivered and the following opin­ions were filed:

Ryan, J.A. (Rice, J.A., concurring) - see paragraphs 1 to 4;

Turnbull, J.A., dissenting in the result - see para­graphs 5 to 49.