HSBC Bank Canada v. Chen

HSBC Bank Canada v. Chen

The realtor had no contract with the petitioner or the respondent Kao; the respondent's prior listing was superseded by the court order granting the petitioner exclusive conduct of sale; there was no unjust enrichment of the respondent by the realtor's efforts; absent a prior agreement or court order preserving...

Source-derived case information.

Citation
2001 BCSC 959
Parties
Petitioner: HSBC Bank Canada; Respondent/registered Owner: Shen Chun-Hui Chen; Respondent/second Mortgagee: Tseng Pao Yen Kao; Applicant/realtor: Britt Ellis
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 June 2001
Procedural Posture
Foreclosure/conduct of Sale / In Chambers Application to Be Added as Respondent and for Payment of Commission From Sale Proceeds
Outcome
Applications dismissed; sum held in trust payable to respondent Kao; costs awarded to respondent Kao
Legal Topics
Foreclosure, Commission and Agency, Unjust Enrichment, Priority of Charges, Conduct of Sale
Source Language
english
Real Property Equity Contract Civil Procedure Foreclosure Commission and Agency Unjust Enrichment Priority of Charges +1 more

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Parties

HSBC Bank Canada

Petitioner

Shen Chun-Hui Chen

Respondent/registered Owner

Tseng Pao Yen Kao

Respondent/second Mortgagee

Britt Ellis

Applicant/realtor

Procedural Posture

Foreclosure/conduct of Sale / In Chambers Application to Be Added as Respondent and for Payment of Commission From Sale Proceeds

Legal Issues

  1. 1 Whether the realtor is entitled to commission out of proceeds of a court ordered sale
  2. 2 Whether the second mortgagee was unjustly enriched by the realtor's efforts
  3. 3 Whether a realtor without a contract with the petitioner or respondent can obtain priority over registered charge holders

Ratio Decidendi

The realtor had no contract with the petitioner or the respondent Kao; the respondent's prior listing was superseded by the court order granting the petitioner exclusive conduct of sale; there was no unjust enrichment of the respondent by the realtor's efforts; absent a prior agreement or court order preserving commission entitlement the realtor ranks as an ordinary creditor and cannot claim priority over a registered charge holder; therefore the realtor's application for commission out of the proceeds is dismissed and the held funds may be paid to the second mortgagee.

Court Disposition

Applications dismissed; sum held in trust payable to respondent Kao; costs awarded to respondent Kao

Orders

  • The applications by the realtor are dismissed
  • The sum of $21,935 held in trust by Lando & Company may be paid out to Tseng Pao Yen Kao