Khan v. Soni

Khan v. Soni

The appeal was dismissed because the appellants' pleadings impermissibly sought to relitigate issues decided by the foreclosure proceedings; the Order Nisi/Order Absolute adjudicated the validity, enforceability and amounts under the mortgages making those issues res judicata, and the chambers judge properly struck the impugned claims under Rule 9-5(1)(d).

Citation
2012 BCCA 207
Parties
Appellant/plaintiff: Mohammed Iqbal Khan (aka Mohammed Iqbal Martin Khan; aka Mohammed Khan); Appellant/plaintiff: Haleeman Khan; Respondent/defendant: Parveen Soni; Respondent/defendant: Dipekka Soni; Respondent/defendant: Rajinder Soni; Respondent/defendant: Harpreet Singh Purwal; Respondent/defendant: Gurbir Kaur Purewal; Respondent/defendant: Reliable Customized Solutions Inc.
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
9 May 2012
Procedural Posture
Appeal From Supreme Court Striking Pleadings Arising From Mortgage Foreclosure / Court of Appeal Oral Reasons on Appeal
Outcome
Appeal dismissed
Legal Topics
Abuse of Process, Order Nisi/order Absolute, Strike Pleadings, Jurisdiction of Residential Tenancy Branch
Source Language
English
Civil Procedure Property Law Mortgage Foreclosure Res Judicata Abuse of Process Order Nisi/order Absolute Strike Pleadings Jurisdiction of Residential Tenancy Branch

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Parties

Mohammed Iqbal Khan (aka Mohammed Iqbal Martin Khan; aka Mohammed Khan)

Appellant/plaintiff

Haleeman Khan

Appellant/plaintiff

Parveen Soni

Respondent/defendant

Dipekka Soni

Respondent/defendant

Rajinder Soni

Respondent/defendant

Harpreet Singh Purwal

Respondent/defendant

Gurbir Kaur Purewal

Respondent/defendant

Reliable Customized Solutions Inc.

Respondent/defendant

Procedural Posture

Appeal From Supreme Court Striking Pleadings Arising From Mortgage Foreclosure / Court of Appeal Oral Reasons on Appeal

Legal Issues

  1. 1 Whether the appellants' claims challenging foreclosure proceedings constituted an abuse of process
  2. 2 Whether the Order Nisi/Order Absolute and related foreclosure determinations operate as res judicata and preclude separate actions
  3. 3 Whether the chambers judge erred by striking pleadings without a formal res judicata plea in the respondents' response

Ratio Decidendi

The appeal was dismissed because the appellants' pleadings impermissibly sought to relitigate issues decided by the foreclosure proceedings; the Order Nisi/Order Absolute adjudicated the validity, enforceability and amounts under the mortgages making those issues res judicata, and the chambers judge properly struck the impugned claims under Rule 9-5(1)(d).

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Order striking portions of the appellants' Notice of Civil Claim upheld