Walker v. Schober

Walker v. Schober

The debtor did not show cause to prevent sale of the property: the Court of Appeal judgment is final and cannot be collaterally attacked, the certificate of judgment is valid and binding on the land, procedural defects caused no prejudice and do not merit dismissal, there is no evidence of champerty or maintenance,...

Source-derived case information.

Citation
2008 BCSC 1252
Parties
Judgment Debtor / Solicitor: Kathleen Walker; Judgment Creditor / Client: Bernhard Beat Schober
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 December 2008
Procedural Posture
Judgment Enforcement Under Court Order Enforcement Act (s.92) / Chambers Show‑cause Hearing; Reference to District Registrar Ordered
Outcome
Applicant's application to enforce judgment granted to proceed to reference; respondent's applications to stay, set aside certificate, and to refer to trial dismissed; application to dismiss for procedural non‑compliance dismissed.
Legal Topics
Execution Against Land, Certificate of Judgment Registration, Sale of Principal Residence, Stay of Execution, Collateral Attack on Judgment, Champerty and Maintenance, Procedural Compliance (rule 51 A)
Source Language
english
Judgment Enforcement Property Law Civil Procedure Family Law Execution Against Land Certificate of Judgment Registration Sale of Principal Residence Stay of Execution +3 more

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Parties

Kathleen Walker

Judgment Debtor / Solicitor

Bernhard Beat Schober

Judgment Creditor / Client

Procedural Posture

Judgment Enforcement Under Court Order Enforcement Act (s.92) / Chambers Show‑cause Hearing; Reference to District Registrar Ordered

Legal Issues

  1. 1 Whether debtor has shown cause under s.92 why property should not be sold
  2. 2 Whether procedural non‑compliance with Rule 51A warranted dismissal
  3. 3 Whether the debtor may collaterally attack the Court of Appeal judgment

Ratio Decidendi

The debtor did not show cause to prevent sale of the property: the Court of Appeal judgment is final and cannot be collaterally attacked, the certificate of judgment is valid and binding on the land, procedural defects caused no prejudice and do not merit dismissal, there is no evidence of champerty or maintenance, and no statutory impediment under the Act was established; accordingly a reference to the district registrar pursuant to s.94 was ordered and no trial under s.93 was granted.

Court Disposition

Applicant's application to enforce judgment granted to proceed to reference; respondent's applications to stay, set aside certificate, and to refer to trial dismissed; application to dismiss for procedural non‑compliance dismissed.

Orders

  • No referral for trial under s.93 of the Court Order Enforcement Act
  • Reference to the district registrar pursuant to s.94 of the Court Order Enforcement Act to determine exigible lands and related matters, with a report to the court