Warford v. Bell, (2005) 297 N.B.R.(2d) 212 (TD)
Judge | Glennie, J. |
Court | Court of Queen's Bench of New Brunswick (Canada) |
Case Date | November 07, 2005 |
Jurisdiction | New Brunswick |
Citations | (2005), 297 N.B.R.(2d) 212 (TD);2005 NBQB 454 |
Warford v. Bell (2005), 297 N.B.R.(2d) 212 (TD);
297 R.N.-B.(2e) 212; 771 A.P.R. 212
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2006] N.B.R.(2d) TBEd. JA.045
Gordon Wesley Warford and Kitty Noressa Warford (applicants) v. Vida M. Bell (respondent)
(S/M/63/05; 2005 NBQB 454)
Indexed As: Warford v. Bell
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Saint John
Glennie, J.
November 8, 2005.
Summary:
The applicants purchased land and a mobile home from the respondent by way of a "take back" mortgage for the full purchase price. The respondent commenced power of sale proceedings pursuant to the terms of the mortgage and s. 44 of the Property Act. The applicant sought an injunction restraining the respondent from proceeding with the mortgage sale.
The New Brunswick Court of Queen's Bench, Trial Division, allowed the application.
Injunctions - Topic 6125
Particular matters - Mortgage foreclosures - Restraining power of sale - The respondent commenced power of sale proceedings pursuant to the terms of a mortgage and s. 44 of the Property Act - She alleged that the applicants had defaulted because they had leased the property to a third party without her consent - The New Brunswick Court of Queen's Bench, Trial Division, restrained the respondent from proceeding with the mortgage sale - The applicants were not in default - The respondent had not acted in good faith and in conformity with the provisions of the mortgage (written notice of default allowing time to cure default) or s. 45(1) of the Property Act (service of notice of sale by registered or certified mail) - The applicants would suffer irreparable harm that would be difficult to compensate in damages if they lost the property at the mortgage sale - The balance of convenience also favoured the applicants.
Cases Noticed:
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. 33].
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. 36].
Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd. et al. (1977), 17 O.R.(2d) 505; 80 D.L.R.(3d) 725; 35 C.P.R.(2d) 273, refd to. [para. 39].
Allsco Building Products Ltd. v. United Food and Commercial Workers International Union, Local 1288P (1998), 207 N.B.R.(2d) 102; 529 A.P.R. 102 (C.A.), refd to. [para. 40].
Trans Canada Credit Corp. v. Morehouse (1997), 193 N.B.R.(2d) 308; 493 A.P.R. 308 (T.D.), refd to. [para. 41].
Counsel:
Randall A. Wilson, on behalf of the applicants;
John M. McNair, on behalf of the respondent.
This application was heard on November 7, 2005, before Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following oral judgment on November 8, 2005.
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...a serious question to be tried: Tall Boys Ltd. v. Bennett, 2002 NFCA 50, 216 D.L.R. (4th) 307; Warford v. Bell, 2005 NBBR 454, 2005 NBQB 454, at paras. 33 to 37; King v. Squires, (2002), 208 Nfld & P.E.I.R. 90 (Nfld. S.C.). In Tall Boys Ltd., after a detailed consideration of the law of......
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HarbourEdge Mortgage Investment Corp. v. Powell Associates Ltd., (2016) 449 N.B.R.(2d) 1 (QB)
...of the argument that the particulars of security must be read in conjunction with the covenants, the Trustee relies on Warford v. Bell, 2005 NBQB 454 (CAN LII) where the Court concluded: In my opinion, since there is no provision in the Mortgage that in the event of a conflict, the Schedule......
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Sanders v. Canada's Choice Investments Inc.,
...a serious question to be tried: Tall Boys Ltd. v. Bennett, 2002 NFCA 50, 216 D.L.R. (4th) 307; Warford v. Bell, 2005 NBBR 454, 2005 NBQB 454, at paras. 33 to 37; King v. Squires, (2002), 208 Nfld & P.E.I.R. 90 (Nfld. S.C.). In Tall Boys Ltd., after a detailed consideration of the law of......
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HarbourEdge Mortgage Investment Corp. v. Powell Associates Ltd., (2016) 449 N.B.R.(2d) 1 (QB)
...of the argument that the particulars of security must be read in conjunction with the covenants, the Trustee relies on Warford v. Bell, 2005 NBQB 454 (CAN LII) where the Court concluded: In my opinion, since there is no provision in the Mortgage that in the event of a conflict, the Schedule......