Bank of Montreal v. Murchinson

Bank of Montreal v. Murchinson

The adjudicator found that non est factum was established: the defendant credibly believed she was signing only as a witness, the contract (a purchase agreement) was fundamentally different from a guarantee, and the salesperson misrepresented the nature of the signature; as assignee BOM is subject to this defence. Additionally BOM failed to prove it conducted a reasonable sale or the fair market value obtained, so it did not establish the balance owing. Therefore the claim against Diane Murchison is dismissed.

Citation
2013 NSSM 18
Parties
Claimant: Bank of Montreal; Defendant: Gordon Kenneth Murchison; Defendant: Diane M. Murchison
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
15 May 2013
Procedural Posture
Small Claims Court Debt Action (consumer Conditional Sales Contract; Repossession/deficiency) / Final Decision on Defence (hearing)
Outcome
Claim dismissed as against Diane M. Murchison; the quick judgment previously entered against Gordon K. Murchison was not set aside by earlier application and is not disturbed by this decision.
Legal Topics
Non Est Factum, Assignment of Contract, Repossession and Sale of Secured Property, Standard Form Contracts and Disclosure, Onus to Prove Reasonable Sale
Source Language
English
Contract Law Consumer Protection Secured Transactions Debt Recovery Civil Procedure Non Est Factum Assignment of Contract Repossession and Sale of Secured Property +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Bank of Montreal

Claimant

Gordon Kenneth Murchison

Defendant

Diane M. Murchison

Defendant

Procedural Posture

Small Claims Court Debt Action (consumer Conditional Sales Contract; Repossession/deficiency) / Final Decision on Defence (hearing)

Legal Issues

  1. 1 Whether defendant Diane Murchison is bound by the Conditional Sales Contract she signed or whether non est factum applies
  2. 2 Whether the Bank of Montreal proved the amount owing after repossession and sale of the vehicle
  3. 3 Whether an assignee (BOM) can enforce the contract given the salesperson's misrepresentation at signing

Ratio Decidendi

The adjudicator found that non est factum was established: the defendant credibly believed she was signing only as a witness, the contract (a purchase agreement) was fundamentally different from a guarantee, and the salesperson misrepresented the nature of the signature; as assignee BOM is subject to this defence. Additionally BOM failed to prove it conducted a reasonable sale or the fair market value obtained, so it did not establish the balance owing. Therefore the claim against Diane Murchison is dismissed.

Court Disposition

Claim dismissed as against Diane M. Murchison; the quick judgment previously entered against Gordon K. Murchison was not set aside by earlier application and is not disturbed by this decision.

Orders

  • Claim against Diane M. Murchison dismissed.