1076586 Alberta Ltd. v. Octagon Properties Ltd.

1076586 Alberta Ltd. v. Octagon Properties Ltd.

Rescission was not available because Stoneset did not plead or prove fraud, delayed and elected not to seek rescission (laches), and the contract placed due diligence obligations on Stoneset; Stoneset failed to prove negligent misrepresentation on a balance of probabilities; accordingly the assignee (1076586) is not...

Source-derived case information.

Citation
2014 BCSC 268
Parties
Petitioner: 1076586 Alberta Ltd.; Respondent: Octagon Properties Ltd.; Respondent: Marco DeDominicis; Respondent: Stoneset Equities Ltd.; Respondent: BKDI Architects; Respondent: Hayesborne Holdings Inc.; Respondent: Colin Lawson; Respondent: Stoneset One Mortgage Corporation
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
25 February 2014
Procedural Posture
Foreclosure; Mortgage Enforcement (vendor Take Back Mortgage) / Summary Trial Application Under Rule 9 7 for Order Nisi of Foreclosure With Shortened Redemption Period
Outcome
Judgment for petitioner 1076586 Alberta Ltd.; Order Nisi of foreclosure granted with a shortened redemption period and costs to 1076586 and the trust beneficiaries at Scale B.
Legal Topics
Foreclosure, Rescission, Misrepresentation, Assignment of Mortgage, Set Off, Laches, Summary Trial Procedure, Order Nisi, Redemption Period, Conduct of Sale
Source Language
english
Property Law Equity Contract Tort Civil Procedure Real Property Mortgage Law Foreclosure +9 more

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Parties

1076586 Alberta Ltd.

Petitioner

Octagon Properties Ltd.

Respondent

Marco DeDominicis

Respondent

Stoneset Equities Ltd.

Respondent

BKDI Architects

Respondent

Hayesborne Holdings Inc.

Respondent

Colin Lawson

Respondent

Stoneset One Mortgage Corporation

Respondent

Procedural Posture

Foreclosure; Mortgage Enforcement (vendor Take Back Mortgage) / Summary Trial Application Under Rule 9 7 for Order Nisi of Foreclosure With Shortened Redemption Period

Legal Issues

  1. 1 Whether summary trial under Rule 9-7 was appropriate
  2. 2 Whether assignee of the VTB mortgage takes subject to equities including right of rescission
  3. 3 Availability of rescission for fraudulent or innocent misrepresentation or failure of consideration

Ratio Decidendi

Rescission was not available because Stoneset did not plead or prove fraud, delayed and elected not to seek rescission (laches), and the contract placed due diligence obligations on Stoneset; Stoneset failed to prove negligent misrepresentation on a balance of probabilities; accordingly the assignee (1076586) is not subject to an equity of rescission and is entitled to an Order Nisi of foreclosure with a shortened redemption period.

Court Disposition

Judgment for petitioner 1076586 Alberta Ltd.; Order Nisi of foreclosure granted with a shortened redemption period and costs to 1076586 and the trust beneficiaries at Scale B.

Orders

  • Order Nisi of foreclosure to issue on terms of petitioner's draft order as amended
  • Last date for redemption set as two clear days from date of judgment