Prenor Trust Company of Canada v. Seawood Enterprises Ltd.

Prenor Trust Company of Canada v. Seawood Enterprises Ltd.

The May 19, 1992 consent order by the Supreme Court constituted an effective extension "otherwise ordered by the court" under Civil Procedure Rule 47.10(3), curing the prothonotary's earlier irregularity; Prenor exercised due diligence in marketing and resale; accordingly Prenor was entitled to a deficiency judgment of $186,386 plus interest and costs, and the chambers judge's dismissal was set aside.

Citation
1993 NSCA 73
Parties
Appellant Mortgagee: Prenor Trust Company of Canada; Respondent Mortgagor: Seawood Enterprises Limited; Respondent Guarantor: John C. Claes; Respondent Guarantor: Norman Bezanson
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
23 March 1993
Procedural Posture
Foreclosure and Deficiency Judgment / Appeal to Court of Appeal (final Judgment)
Outcome
Appeal allowed; order of chambers judge set aside; judgment entered for appellant Prenor Trust Company of Canada against respondents for deficiency, interest and costs
Legal Topics
Deficiency Judgment, Foreclosure and Sale, Timeliness/extension of Time, Prothonotary Jurisdiction, Duty to Obtain Reasonable Sale Price, Consent Orders
Source Language
English
Property Law Mortgage Law Civil Procedure Remedies Costs Deficiency Judgment Foreclosure and Sale Timeliness/extension of Time +3 more

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Parties

Prenor Trust Company of Canada

Appellant Mortgagee

Seawood Enterprises Limited

Respondent Mortgagor

John C. Claes

Respondent Guarantor

Norman Bezanson

Respondent Guarantor

Procedural Posture

Foreclosure and Deficiency Judgment / Appeal to Court of Appeal (final Judgment)

Legal Issues

  1. 1 Whether a prothonotary had jurisdiction to extend the time to apply for a deficiency judgment under Civil Procedure Rule 47.10(3)
  2. 2 Whether a later consent court order (May 19, 1992) constituted an effective extension "otherwise ordered by the court" under Rule 47.10(3) curing any irregularity
  3. 3 Whether the mortgagee exercised due diligence and was negligent in marketing and resale of the property

Ratio Decidendi

The May 19, 1992 consent order by the Supreme Court constituted an effective extension "otherwise ordered by the court" under Civil Procedure Rule 47.10(3), curing the prothonotary's earlier irregularity; Prenor exercised due diligence in marketing and resale; accordingly Prenor was entitled to a deficiency judgment of $186,386 plus interest and costs, and the chambers judge's dismissal was set aside.

Court Disposition

Appeal allowed; order of chambers judge set aside; judgment entered for appellant Prenor Trust Company of Canada against respondents for deficiency, interest and costs

Orders

  • Set aside chambers judge's dismissal of Prenor's application for deficiency judgment
  • Judgment for Prenor Trust Company of Canada against Seawood Enterprises Limited, John C. Claes and Norman Bezanson in the amount of $186,386