Canada v. Rudolf

Canada v. Rudolf

The registered trust instrument was ineffective to create an express trust because the purported settlor lacked the requisite proprietary interest, there was no proper transfer or delivery, the instrument failed the three certainties and contained repugnant provisions; accordingly the property remained the respondent Rudolf's fee simple estate and the petitioner's certified tax judgment may be enforced against it, with a reference to a Registrar to determine interests, priorities and sale.

Citation
2009 BCSC 77
Parties
Petitioner: Her Majesty the Queen in Right of Canada; Respondent: Jozef K. Rudolf; Respondent: Jaroslav Stepan; Respondent: Ludmila Kukuckova
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
31 March 2009
Procedural Posture
Court Order Enforcement; Income Tax Judgment Enforcement / Hearing and Reasons for Judgment
Outcome
Trust declared void; Rudolf declared sole owner in fee simple; reference to Registrar under s.94 Court Order Enforcement Act to determine sale/liens; costs awarded to petitioner; opportunity granted for sister to apply on resulting trust issue.
Legal Topics
Validity of Trust Instrument, Three Certainties, Repugnancy, Resulting and Implied Trusts, Registration of Judgment Lien, Sale of Property to Satisfy Judgment
Source Language
English
Trusts Property Law Tax Law Civil Procedure Enforcement Validity of Trust Instrument Three Certainties Repugnancy +3 more

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Parties

Her Majesty the Queen in Right of Canada

Petitioner

Jozef K. Rudolf

Respondent

Jaroslav Stepan

Respondent

Ludmila Kukuckova

Respondent

Procedural Posture

Court Order Enforcement; Income Tax Judgment Enforcement / Hearing and Reasons for Judgment

Legal Issues

  1. 1 Whether the registered trust instrument created a valid trust over the Wynndel property
  2. 2 Whether the purported settlor had the requisite ownership or power to create the trust
  3. 3 Whether there was a valid transfer/delivery and present intention to create a trust

Ratio Decidendi

The registered trust instrument was ineffective to create an express trust because the purported settlor lacked the requisite proprietary interest, there was no proper transfer or delivery, the instrument failed the three certainties and contained repugnant provisions; accordingly the property remained the respondent Rudolf's fee simple estate and the petitioner's certified tax judgment may be enforced against it, with a reference to a Registrar to determine interests, priorities and sale.

Court Disposition

Trust declared void; Rudolf declared sole owner in fee simple; reference to Registrar under s.94 Court Order Enforcement Act to determine sale/liens; costs awarded to petitioner; opportunity granted for sister to apply on resulting trust issue.

Orders

  • 1. The Respondent Jozef K. Rudolf is the sole owner in fee simple of property located at 5417 Elsie Holmes Road, Wynndel, British Columbia, PID: 014-283-387 Lot 2 District Lot 279 Kootenay District Plan 1356 except part included in plan 13079.
  • 2. Trust OROL 129 registered against title to the Property under registration numbers KN022564 and KN054041 is void.