Webmor Financial Services Ltd. v. James M. Drummond Holdings Ltd., Da-Lin Developments Ltd., Arnholtz and Drummond, (1981) 33 A.R. 493 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 23, 1981
• Citations: (1981), 33 A.R. 493 (QBM)

Webmor Financial v. Drummond (1981), 33 A.R. 493 (QBM)

MLB headnote and full text

Webmor Financial Services Ltd. v. James M. Drummond Holdings Ltd., Da-Lin Developments Ltd., Arnholtz and Drummond

(No. 8003-25915)

Indexed As: Webmor Financial Services Ltd. v. James M. Drummond Holdings Ltd., Da-Lin Developments Ltd., Arnholtz and Drummond

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

November 23, 1981.

Summary:

The plaintiff was granted an order nisi/order for sale after it foreclosed on a mortgage granted to it by the corporate defendants. The corporate defendants applied for an order to set aside the order nisi and to permit them to deliver a defence and for an order postponing the sale of the lands and premises and extending the period of redemption.

A Master of the Alberta Court of Queen's Bench, in Chambers, dismissed both applications. The court held that it had no jurisdiction to set aside the order nisi, because it was not a default judgment. The court also held that to permit a mortgagor to try to find a purchaser was not a proper ground to extend a period of redemption.

Practice - Topic 5602

Judgments and orders - Default judgments - Defined - A Master of the Alberta Court of Queen's Bench, in Chambers, stated that a judgment entered upon default of defence encompasses only those judgments where the plaintiff is able to enter a judgment directly with the Clerk without the necessity of adjudication by a Judge or Master - See paragraph 7.

Practice - Topic 5602

Judgments and orders - Default judgments - Defined - A Master of the Alberta Court of Queen's Bench, in Chambers, stated that, although a default judgment is not "granted" by a Judge or Master, but only "entered" with the court through the office of the Clerk, it still becomes a judgment of the court - See paragraphs 9 to 12.

Mortgages - Topic 5513

Mortgage actions - Action for foreclosure and sale - Foreclosure order - Staying - A Master of the Alberta Court of Queen's Bench, in Chambers, held that a mortgagee should not be stayed from proceeding to advertising in order to allow the mortgagors to try to sell the land - See paragraph 52.

Mortgages - Topic 5511

Mortgage actions - Action for foreclosure and sale - Foreclosure order nisi - Nature of - A Master of the Alberta Court of Queen's Bench, in Chambers, stated that an order nisi granted after the failure of the defendant to deliver a defence is not a "judgment entered upon default of defence" but a judgment granted by the court - See paragraphs 13 to 15.

Mortgages - Topic 5511

Mortgage actions - Action for foreclosure and sale - Foreclosure order nisi - Nature of - A Master of the Alberta Court of Queen's Bench, in Chambers, stated that, although a judgment obtained in a foreclosure action is described as an order, it was not an order within Rules 389 and 390 of the Rules of Court - See paragraph 28.

Practice - Topic 3679

Evidence - Affidavits - Use of - Admissibility - A Master of the Alberta Court of Queen's Bench, in Chambers, stated that hearsay evidence in affidavits is inadmissible and must be ignored - See paragraphs 56 to 58.

Cases Noticed:

M. Gordon & Son Ltd. v. Debly (1956), 3 D.L.R.(2d) 1, consd. [para. 10].

Hudson Bay Co. v. Scott, [1929] 3 W.W.R. 232, consd. [para. 11].

Halbert v. Netherlands Investment Company of Canada Limited, [1945] S.C.R. 329, refd to. [para. 14].

Kolacz v. Munzel, [1971] 5 W.W.R. 757, refd to. [para. 14].

Griffith v. Jorgensen (1964), 49 W.W.R.(N.S.) 111, refd to. [para. 14].

Locarno Investments Limited v. Industrial Mortgage and Finance Corporation Limited (1967), 59 W.W.R.(N.S.) 293, refd to. [para. 14].

Singh (Banns) et al. v. Bank of Montreal, [1980] 3 W.W.R. 403, refd to. [para. 14].

Wensel v. Wensel, 65 D.L.R.(3d) 327, affd. [1977] 1 W.W.R. 32; 5 A.R. 379, refd to. [para. 28].

Canadian Imperial Bank of Commerce v. Bury, 11 Alta. L.R.(2d) 93, refd to. [para. 28].

Chiste v. Northern Electric Co. Ltd. (1978), 14 A.R. 559; 7 Alta. L.R.(2d) 330, refd to. [para. 29].

Costa v. Sanavik Co-Operative Association Limited et al. (1981), 24 A.R. 417, refd to. [para. 29].

Northguard Acceptance Corporation Ltd. v. Kurtz et al. (1977), 4 A.R. 236; 3 Alta. L.R.(2d) 172, refd to. [para. 42].

Everson v. Hodgson, [1921] 1 W.W.R. 825, consd. [para. 44].

Saskatchewan Mortgage and Trust Corporation v. O'Conner, [1925] 1 W.W.R. 497, consd. [para. 46].

MacKenzie v. MacKenzie Estate, [1932] 3 W.W.R. 159, consd. [para. 47].

Sokolosky v. Robinson, [1943] O.W.N. 509, consd. [para. 48].

Canadian Imperial Bank of Commerce v. Clasky (1967), 60 W.W.R.(N.S.) 62, consd. [para. 49].

Idington v. The Trusts & Guarantee Co., [1917] 2 W.W.R. 154, consd. [para. 50].

Cairns v. Cairns, [1931] 3 W.W.R. 335, refd to. [para. 55].

Mackley v. Governors of University of Alberta, [1933] 2 W.W.R. 330, refd to. [para. 55].

O'Brien v. Parody, 14 C.P.C. 160, refd to. [para. 59].

Statutes Noticed:

Rules of Court (Alta.), rule 158 [paras. 6, 12, 20, 29, 30, 31, 34]; rule 156 [para. 8]; rule 142 [para. 9]; rule 326 [para. 12]; rule 686(6) [para. 16]; rule 686(2) [paras. 17, 34]; rule 23(4), rule 143, rule 626, rule 490(1) [para. 22]; rule 145 [para. 24]; rule 243 [para. 25]; rule 144 [para. 26]; rule 148, rule 389 [para. 28]; rule 390 [paras. 28, 29]; rule 150 [para. 29]; rule 257 [para. 33]; rule 220, rule 221 [para. 36]; rule 305(3) [para. 59].

Land Titles Act, R.S.A. 1970, c. 198, sect. 109(1) [para. 43].

Counsel:

L. Whittaker, for the plaintiff;

A. Verenka, for the defendants.

This case was heard before MASTER IN CHAMBERS FUNDUK of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 23, 1981.