Keno Inc. v. Extrac Minerals Ltd.

Keno Inc. v. Extrac Minerals Ltd.

The appeal is dismissed because there are no triable issues: the mortgage, loan agreement and guarantee are valid; Extrac was in default since at least February 1, 2010; the assignee had standing and gave notice; Mr. Madden's affidavit is inadmissible and entitled to no weight; the fresh evidence does not alter the...

Source-derived case information.

Citation
2016 BCSC 1177
Parties
Petitioner: Keno Inc.; Petitioner: AMM Inc.; Respondent/appellant: Extrac Minerals Ltd.; Respondent/appellant: Donald Herbert Lust; Respondent/appellant: Attorney General of Canada, Department of Justice
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
27 June 2016
Procedural Posture
Foreclosure; Mortgage Enforcement / Appeal (rehearing)
Outcome
Appeal dismissed; original order nisi and order for sale remain in effect; costs awarded to petitioners on Scale B.
Legal Topics
Foreclosure, Order Nisi, Order for Sale, Redemption Period, Assignment of Mortgage, Fresh Evidence, Bias, Cross Examination, Relief From Acceleration, Promissory Note
Source Language
english
Mortgage Law Property Law Civil Procedure Equity Contract Law Foreclosure Order Nisi Order for Sale +7 more

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Parties

Keno Inc.

Petitioner

AMM Inc.

Petitioner

Extrac Minerals Ltd.

Respondent/appellant

Donald Herbert Lust

Respondent/appellant

Attorney General of Canada, Department of Justice

Respondent/appellant

Procedural Posture

Foreclosure; Mortgage Enforcement / Appeal (rehearing)

Legal Issues

  1. 1 Alleged judicial bias/prejudice by the Master
  2. 2 Refusal to permit cross-examination of petitioners' affiant
  3. 3 Weight and admissibility of Mr. Madden's expert/legal opinion affidavit

Ratio Decidendi

The appeal is dismissed because there are no triable issues: the mortgage, loan agreement and guarantee are valid; Extrac was in default since at least February 1, 2010; the assignee had standing and gave notice; Mr. Madden's affidavit is inadmissible and entitled to no weight; the fresh evidence does not alter the fact of default or justify relief from acceleration; cross-examination of the petitioners' affiant was unnecessary; consequently the order nisi, judgment and order for sale remain in effect and the petitioners are entitled to costs on Scale B.

Court Disposition

Appeal dismissed; original order nisi and order for sale remain in effect; costs awarded to petitioners on Scale B.

Orders

  • Appeal dismissed
  • Original order nisi upheld