E. Sands and Associates Inc. v. Dextras Engineering & Construction Ltd.

E. Sands and Associates Inc. v. Dextras Engineering & Construction Ltd.

The applications for extension of time and leave to appeal were dismissed because the applicants failed to show arguable merit or entitlement to re-opening, they made a tactical choice not to raise the solvency issue earlier, and granting extensions would prejudice the trustee given prolonged delay and contumacious conduct; therefore further proceedings would be unjustified and the appropriate remedy was appeal, not re-opening.

Citation
2009 BCCA 236
Parties
Respondent (plaintiff): E. Sands and Associates Inc., Trustee of the Estate of National Shoring Ltd., a Bankrupt; Appellants (defendants): Ken Dextras and Susan Dextras
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
28 May 2009
Procedural Posture
Civil Appeal (applications for Extension of Time and Leave to Appeal) / In Chambers Applications to Re Open Assessment of Damages, Extension of Time and Leave to Appeal
Outcome
All applications by the applicants dismissed
Legal Topics
Default Judgment, Re Opening Judgment, Extension of Time to Appeal, Leave to Appeal, Assessment of Damages, Fraudulent Preference/conveyance
Source Language
English
Civil Procedure Bankruptcy and Insolvency Appeal Property Recovery/fraudulent Preference Default Judgment Re Opening Judgment Extension of Time to Appeal Leave to Appeal +2 more

Case Brief

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Parties

E. Sands and Associates Inc., Trustee of the Estate of National Shoring Ltd., a Bankrupt

Respondent (plaintiff)

Ken Dextras and Susan Dextras

Appellants (defendants)

Procedural Posture

Civil Appeal (applications for Extension of Time and Leave to Appeal) / In Chambers Applications to Re Open Assessment of Damages, Extension of Time and Leave to Appeal

Legal Issues

  1. 1 Whether an extension of time to seek leave to appeal the January 20, 2009 order should be granted
  2. 2 Whether leave to appeal the January 20, 2009 order should be granted
  3. 3 Whether an extension of time to appeal the September 19, 2008 assessment of damages should be granted

Ratio Decidendi

The applications for extension of time and leave to appeal were dismissed because the applicants failed to show arguable merit or entitlement to re-opening, they made a tactical choice not to raise the solvency issue earlier, and granting extensions would prejudice the trustee given prolonged delay and contumacious conduct; therefore further proceedings would be unjustified and the appropriate remedy was appeal, not re-opening.

Court Disposition

All applications by the applicants dismissed

Orders

  • Applications dismissed with costs to the respondent (trustee)