Bancorp Investments (Fund 2) et al. v. Bhugra Holdings et al.

Bancorp Investments (Fund 2) et al. v. Bhugra Holdings et al.

Application dismissed because the prerequisites for apportionment/marshalling are absent: the Petitioners' claim was not against a single mortgagor as the Surrey Property and Kelowna Property were owned by different entities; the Kelowna Property was not at the disposal of the Surrey mortgagor; and the applicants are lien/judgment claimants without the requisite proprietary priority to invoke marshalling/apportionment.

Citation
2006 BCSC 893
Parties
Petitioner: Bancorp Investments (Fund 2) Ltd.; Petitioner: Bancorp First Mortgage Fund Inc.; Petitioner: Bancorp Financial Services Inc.; Respondent (registered Owner of Surrey Property): Bhugra Holdings Ltd.; Respondent (second Mortgagee on Surrey Property): CareVest Capital Inc.; Applicant (lien Claimant): John de Boer; Applicant (lien Claimant): J. & P. Pattinson (2002) Ltd.; Applicant (lien Claimant): Alka Pool Construction Ltd.; Respondent (registered Owner of Kelowna Property): Westview Motor Inn Ltd.; Respondent (beneficial Owner of Westview): Satkartar Hotels Inc.; Interested Party (registered Priority Claim): The Crown in Right of Canada
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
9 June 2006
Procedural Posture
Foreclosure Proceeding; Motion for Apportionment (marshalling) / In Chambers – Reasons for Judgment on Application Dated 17 February 2006
Outcome
Application dismissed.
Legal Topics
Marshalling, Apportionment, Builders' Liens, Foreclosure, Priority of Security
Source Language
English
Equity Property Law Mortgages Construction Lien Law Civil Procedure Marshalling Apportionment Builders' Liens +2 more

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Parties

Bancorp Investments (Fund 2) Ltd.

Petitioner

Bancorp First Mortgage Fund Inc.

Petitioner

Bancorp Financial Services Inc.

Petitioner

Bhugra Holdings Ltd.

Respondent (registered Owner of Surrey Property)

CareVest Capital Inc.

Respondent (second Mortgagee on Surrey Property)

John de Boer

Applicant (lien Claimant)

J. & P. Pattinson (2002) Ltd.

Applicant (lien Claimant)

Alka Pool Construction Ltd.

Applicant (lien Claimant)

Westview Motor Inn Ltd.

Respondent (registered Owner of Kelowna Property)

Satkartar Hotels Inc.

Respondent (beneficial Owner of Westview)

The Crown in Right of Canada

Interested Party (registered Priority Claim)

Procedural Posture

Foreclosure Proceeding; Motion for Apportionment (marshalling) / In Chambers – Reasons for Judgment on Application Dated 17 February 2006

Legal Issues

  1. 1 Whether marshalling or apportionment can be ordered where the first mortgagee holds security in respect of the same debt over two properties owned by different debtors or entities
  2. 2 Whether the funds securing the mortgage were both at the mortgagor's disposal such that marshalling/apportionment can be imposed
  3. 3 Whether builders' lien claimants and judgment creditors are entitled to relief by marshalling or apportionment against secured creditors

Ratio Decidendi

Application dismissed because the prerequisites for apportionment/marshalling are absent: the Petitioners' claim was not against a single mortgagor as the Surrey Property and Kelowna Property were owned by different entities; the Kelowna Property was not at the disposal of the Surrey mortgagor; and the applicants are lien/judgment claimants without the requisite proprietary priority to invoke marshalling/apportionment.

Court Disposition

Application dismissed.

Orders

  • Application for apportionment dismissed.
  • Petitioners and respondent Bhugra Holdings Ltd. awarded costs against the applicants at Scale 3.