Mullen (Re)

Mullen (Re)

The motion to lift the stay and enforce the judgment was unfounded and failed; because the bankrupt and trustee successfully opposed the motion and the trustee's conditional consent did not negate entitlement to costs, the court exercised its discretion under s.197 BIA to award lump sum costs of $2,000 to each successful party against the unsuccessful creditor, departing from the lower tariff due to the volume and issues raised by the motion and affidavit evidence.

Citation
2016 NSSC 339
Parties
Creditor/applicant: Leonard Dykens; Bankrupt/respondent: Randall Stephen Mullen; Trustee/respondent: BDO Canada Limited as trustee in bankruptcy of Randall Mullen
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
29 December 2016
Procedural Posture
Bankruptcy and Insolvency / Post Discharge Motion for Lifting Stay and Enforcement; Costs Decision
Outcome
Motion dismissed; costs awarded to bankrupt and trustee
Legal Topics
Discharge, Lifting of Bankruptcy Stay, Enforcement of Judgment Against RRSP, Costs, Trustee Consent
Source Language
English
Bankruptcy and Insolvency Civil Procedure Costs and Fees Discharge Lifting of Bankruptcy Stay Enforcement of Judgment Against RRSP Costs Trustee Consent

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Parties

Leonard Dykens

Creditor/applicant

Randall Stephen Mullen

Bankrupt/respondent

BDO Canada Limited as trustee in bankruptcy of Randall Mullen

Trustee/respondent

Procedural Posture

Bankruptcy and Insolvency / Post Discharge Motion for Lifting Stay and Enforcement; Costs Decision

Legal Issues

  1. 1 Whether a creditor may lift the bankruptcy stay and enforce a pre-bankruptcy judgment against an RRSP after the bankrupt received an absolute discharge
  2. 2 Whether the trustee's consent to the motion affects entitlement to costs
  3. 3 Whether costs should be awarded and on what basis (lump sum/tariff/scale)

Ratio Decidendi

The motion to lift the stay and enforce the judgment was unfounded and failed; because the bankrupt and trustee successfully opposed the motion and the trustee's conditional consent did not negate entitlement to costs, the court exercised its discretion under s.197 BIA to award lump sum costs of $2,000 to each successful party against the unsuccessful creditor, departing from the lower tariff due to the volume and issues raised by the motion and affidavit evidence.

Court Disposition

Motion dismissed; costs awarded to bankrupt and trustee

Orders

  • Motion dismissed
  • Judgment for costs in the amount of $2,000 in favour of Randall Stephen Mullen against Leonard Dykens