Querfurth v. Querfurth

Querfurth v. Querfurth

The appeal is allowed and the Order of May 1, 2003 (dated October 4, 2002) is set aside; subject to protection of third party purchasers and other persons who acquired interests under earlier orders, the earlier interim orders are set aside so that only assets now owned by one or both parties (including funds held in trust or paid into court) are to be the subject of the trial in Supreme Court; funds already paid into court in respect of sales are to be retained to the credit of the action and payable only on consent of counsel or further order; the appellant is granted the benefit of filing a Statement of Defence and all procedural safeguards; no order as to costs.

Citation
2004 BCCA 329
Parties
Respondent (plaintiff): Denise Cecile Querfurth; Appellant (defendant): Richard Brent Querfurth
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
10 June 2004
Procedural Posture
Civil Appeal From Supreme Court of British Columbia (property/family Assets) / Court of Appeal Judgment Allowing Appeal and Remitting Issues for Trial; Supplemental Reasons Issued to Define Operative Orders
Outcome
Appeal allowed; Order of May 1, 2003 (dated October 4, 2002) set aside; earlier orders set aside subject to protection of third party rights; funds from sales retained in court to credit of action; appellant permitted to file Statement of Defence; no order as to costs.
Legal Topics
Setting Aside Default Judgment, Vacating Orders, Retention of Sale Proceeds in Court, Third Party Rights, Right to File Statement of Defence, Remittal to Trial
Source Language
English
Civil Procedure Property Law Family/property Division Appeals Setting Aside Default Judgment Vacating Orders Retention of Sale Proceeds in Court Third Party Rights +2 more

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Parties

Denise Cecile Querfurth

Respondent (plaintiff)

Richard Brent Querfurth

Appellant (defendant)

Procedural Posture

Civil Appeal From Supreme Court of British Columbia (property/family Assets) / Court of Appeal Judgment Allowing Appeal and Remitting Issues for Trial; Supplemental Reasons Issued to Define Operative Orders

Legal Issues

  1. 1 Whether the Order of May 1, 2003 (dated October 4, 2002) should be set aside
  2. 2 Whether earlier orders (May 29, 2000; Nov 27, 2000; Jan 26, 2001) should be set aside and to what extent
  3. 3 What directions should be given concerning funds paid into court from sale of property

Ratio Decidendi

The appeal is allowed and the Order of May 1, 2003 (dated October 4, 2002) is set aside; subject to protection of third party purchasers and other persons who acquired interests under earlier orders, the earlier interim orders are set aside so that only assets now owned by one or both parties (including funds held in trust or paid into court) are to be the subject of the trial in Supreme Court; funds already paid into court in respect of sales are to be retained to the credit of the action and payable only on consent of counsel or further order; the appellant is granted the benefit of filing a Statement of Defence and all procedural safeguards; no order as to costs.

Court Disposition

Appeal allowed; Order of May 1, 2003 (dated October 4, 2002) set aside; earlier orders set aside subject to protection of third party rights; funds from sales retained in court to credit of action; appellant permitted to file Statement of Defence; no order as to costs.

Orders

  • The appeal is allowed and the Order made May 1, 2003 (but dated October 4, 2002) be set aside
  • All funds paid into court and remaining in court in respect of the sale of any assets carried out in accordance with the previous orders of May 29, 2000, November 27, 2000 or January 26, 2001 be retained in court to the credit of this action and be payable out of court only on the consent of both counsel or upon...