Wilson (Bankrupt), Re, (1996) 178 A.R. 237 (CA)

• Judge: Belzil, Russell and Picard, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 12, 1996
• Citations: (1996), 178 A.R. 237 (CA)

Wilson (Bankrupt), Re (1996), 178 A.R. 237 (CA);

    110 W.A.C. 237

MLB headnote and full text

In The Matter Of the Bankruptcies of Rodney Edward Wilson, 24-043621 (Ordinary Administration) and Kathi Gay Wilson, 24-043622 (Ordinary Administration)

Province of Alberta Treasury Branches (appellant/creditor) v. Rodney Edward Wilson, Kathi Gay Wilson, Ian P. Mackin & Associates Inc., Trustee (respondents)

(Appeal No. 9403-0625 AC)

Indexed As: Wilson (Bankrupt), Re

Alberta Court of Appeal

Belzil, Russell and Picard, JJ.A.

January 12, 1996.

Summary:

On February 14, 1994, the Wilsons accepted an offer to purchase their home. The closing date was March 31, 1994. The Wilsons made an assignment in bankruptcy on March 22, 1994. The trustee in bank­ruptcy received the net proceeds from the sale of the Wilson's home and applied for directions regarding the disposition of the proceeds. A Registrar found that the pro­ceeds from the sale were exempt.

The Alberta Court of Queen's Bench, in a decision not reported in this series of reports, affirmed the decision. A creditor of the Wilsons appealed.

The Alberta Court of Appeal allowed the appeal and declared that the proceeds from the sale of the house were not exempt.

Bankruptcy - Topic 485

Property of bankrupt - Exemptions or exclusions - Homestead property - On February 14, 1994, the Wilsons accepted an offer to purchase their home - The closing date was March 31, 1994 - The Wilsons made an assignment in bankruptcy on March 22, 1994 - The trustee in bank­ruptcy received the net proceeds from the sale of the Wilsons' home - The Alberta Court of Appeal held that the home was sold under agreement on February 14, 1994, prior to the assignment in bank­ruptcy - At the date of the assignment, the bankrupts' interest in the house was limited to a monetary claim for the proceeds of the sale and the sale proceeds were there­fore not exempt.

Bankruptcy - Topic 486

Property of bankrupt - Exemptions or exclusions - Proceeds from sale of exempt property - [See Bankruptcy - Topic 485 ].

Cases Noticed:

Regal Distributors Ltd. v. Freele, [1931] 1 W.W.R. 299 (Alta. C.A.), folld. [para. 1].

Gruber (Bankrupt), Re (1993), 143 A.R. 301; 22 C.B.R.(3d) 262 (Q.B. Bktcy.), dist. [para. 6].

Holthuysen (Trustee of) v. Holthuysen (1986), 63 C.B.R.(N.S.) 169 (Alta. C.A.), refd to. [para. 9].

Starko v. Starko (1992), 134 A.R. 48 (Q.B.), folld. [para. 15].

Dhalla (Bankrupt), Re (1991), 122 A.R. 365; 8 C.B.R.(3d) 57 (Q.B. Bktcy.), folld. [para. 15].

McAteer, Re (1981), 32 A.R. 248 (Q.B.), folld. [para. 15].

Burns, Re (1977), 9 A.R. 413 (T.D.), folld. [para. 15].

Finley, Re (1977), 7 A.R. 26 (Dist. Ct.), folld. [para. 15].

Hammill, Re (1984), 54 A.R. 132; 52 C.B.R.(N.S.) 125 (Q.B.), not folld. [para. 15].

Henwood, Re (1962), 40 W.W.R.(N.S.) 81 (Alta. T.D.), not folld. [para. 15].

Counsel:

D.R. Bieganek, for the appellant/creditor;

B.L. Handel, for Rodney Edward Wilson and Kathi Gay Wilson;

N.J. Cavanagh, for Ian P. Mackin & Asso­ciates Inc.

This appeal was heard on September 21, 1995, before Belzil, Russell and Picard, JJ.A., of the Alberta Court of Appeal.

On January 12, 1996, the following mem­orandum of judgment was delivered by the Court.