Samuel v. Canoe Creek Golf Resort Inc.

Samuel v. Canoe Creek Golf Resort Inc.

The petitioners failed to prove default because the Mortgage required payments based on the Distributable Cash of the covenantor (Canoe Creek Golf Course Inc.) and no evidence established that entity had Distributable Cash in 2007 or 2008; the Limited Partnership Agreement could not be admitted to contradict the Mortgage; and the trustee's involvement in executing subsequent mortgages resulted in consent/estoppel or waiver, so no breach was established; therefore foreclosure relief was refused and the petition converted to an action for trial.

Citation
2009 BCSC 1247
Parties
Petitioners: Albert John Samuel, David James Kohlen and Jose Neves Soares (Trustees) and Canoe Creek Income Trust; Respondent (mortgagor): Canoe Creek Golf Resort Inc.; Respondent (mortgagee/secured Creditor): North Shore Credit Union; Respondent (secured Creditor): Genera Investments Inc.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 September 2009
Procedural Posture
Foreclosure Petition / Application Heard; Judgment Refusing Relief; Matter Converted to Trial/action
Outcome
Application dismissed; relief refused; petition converted to action and trial ordered
Legal Topics
Distributable Cash Definition, Default Under Mortgage, Extrinsic Evidence/parol Evidence, Consent to Subsequent Mortgages, Estoppel and Waiver, Conversion of Petition to Action
Source Language
English
Mortgage Law Property Law Equity Contract Interpretation Civil Procedure Distributable Cash Definition Default Under Mortgage Extrinsic Evidence/parol Evidence +3 more

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Parties

Albert John Samuel, David James Kohlen and Jose Neves Soares (Trustees) and Canoe Creek Income Trust

Petitioners

Canoe Creek Golf Resort Inc.

Respondent (mortgagor)

North Shore Credit Union

Respondent (mortgagee/secured Creditor)

Genera Investments Inc.

Respondent (secured Creditor)

Procedural Posture

Foreclosure Petition / Application Heard; Judgment Refusing Relief; Matter Converted to Trial/action

Legal Issues

  1. 1 Whether Canoe Creek Golf Resort Inc. was in default for failing to pay principal under the Mortgage
  2. 2 Whether Distributable Cash of the Limited Partnership could be used to trigger mortgage payments under the Mortgage
  3. 3 Admissibility of Limited Partnership Agreement as extrinsic evidence to interpret the Mortgage

Ratio Decidendi

The petitioners failed to prove default because the Mortgage required payments based on the Distributable Cash of the covenantor (Canoe Creek Golf Course Inc.) and no evidence established that entity had Distributable Cash in 2007 or 2008; the Limited Partnership Agreement could not be admitted to contradict the Mortgage; and the trustee's involvement in executing subsequent mortgages resulted in consent/estoppel or waiver, so no breach was established; therefore foreclosure relief was refused and the petition converted to an action for trial.

Court Disposition

Application dismissed; relief refused; petition converted to action and trial ordered

Orders

  • Relief sought in the amended petition is refused
  • Proceedings are converted to a trial/action pursuant to Rule 52(11)(d) and the amended petition will stand as a writ