Chinn v. Hanrieder

Chinn v. Hanrieder

The application was granted because the appellant failed to discharge the onus to show why security should not be required; there is a real risk she could become judgment-proof, she has not complied with the court-ordered accounting and has not filed direct financial evidence, the appeal is arguable but credibility findings make overturn difficult, and it is not unjust to require security; accordingly security for costs of the appeal and for the trial/judgment was ordered under ss.24 and 10(2)(b) of the Court of Appeal Act and the appeal was stayed until security is posted.

Citation
2010 BCCA 274
Parties
Respondent (plaintiff): Bette Chinn; Respondent (plaintiff): Dennis Hanrieder; Appellant (defendant): Ingrid Hedwig Hanrieder; Respondent (third Party): Roderick E. Mont; Respondent (third Party): Allin, Anderson, Mont & Walker; Respondent (third Party): Heath and Company
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
1 June 2010
Procedural Posture
Civil Appeal / In Chambers Application for Security for Costs of Appeal and for Trial/judgment
Outcome
Application granted: security for costs ordered for both the appeal and the trial; appeal stayed until security posted; failure to post permits respondents to apply to dismiss the appeal
Legal Topics
Secret Trust, Security for Costs, Accounting, Tracing, Breach of Contract, Credibility Findings, Stay of Execution
Source Language
English
Trusts Contract Civil Procedure Costs Equity Secret Trust Security for Costs Accounting +4 more

Case Brief

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Parties

Bette Chinn

Respondent (plaintiff)

Dennis Hanrieder

Respondent (plaintiff)

Ingrid Hedwig Hanrieder

Appellant (defendant)

Roderick E. Mont

Respondent (third Party)

Allin, Anderson, Mont & Walker

Respondent (third Party)

Heath and Company

Respondent (third Party)

Procedural Posture

Civil Appeal / In Chambers Application for Security for Costs of Appeal and for Trial/judgment

Legal Issues

  1. 1 Whether a secret trust existed such that the appellant held mineral rights on trust for the plaintiffs
  2. 2 Whether the appellant breached an agreement to transfer mineral rights to the plaintiffs
  3. 3 Whether security for costs of the appeal should be ordered under s.24 Court of Appeal Act

Ratio Decidendi

The application was granted because the appellant failed to discharge the onus to show why security should not be required; there is a real risk she could become judgment-proof, she has not complied with the court-ordered accounting and has not filed direct financial evidence, the appeal is arguable but credibility findings make overturn difficult, and it is not unjust to require security; accordingly security for costs of the appeal and for the trial/judgment was ordered under ss.24 and 10(2)(b) of the Court of Appeal Act and the appeal was stayed until security is posted.

Court Disposition

Application granted: security for costs ordered for both the appeal and the trial; appeal stayed until security posted; failure to post permits respondents to apply to dismiss the appeal

Orders

  • Appellant to post $6,000 in cash or an irrevocable letter of credit in form satisfactory to the Registrar within 30 days for each of the three respondents as security for costs of the appeal
  • Appeal stayed until the security for appeal costs is posted; if not posted within 30 days respondents may apply to have the appeal dismissed