Warren v. Warren

Citation: Warren v. Warren Date: 19990317 1999 BCCA 0204 Docket: CA020522 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: THE HONOURABLE MADAM JUSTICE SOUTHIN March 17, 1999 THE HONOURABLE MADAM JUSTICE HUDDART THE HONOURABLE MR. JUSTICE MACKENZIE Vancouver, B.C. BETWEEN:

ROBERT GORDON WARREN

APPELLANT AND:

MARGRIET ELIZABETH WARREN

RESPONDENT M.K. Morrison appearing for the Appellant M. Barr appearing for the Respondent [1] SOUTHIN, J.A.: This is an application for review, if that is the right word for it, of an order, if that is the right word for it, of a Chambers judge arising in this way: On 12 February 1997, this Court dismissed the appellant's appeal from a judgment of Mr. Justice Lowry made 24 May 1995. In our reasons for judgment, we - I say "we" advisedly, because I was one of the panel - we did not expressly address the issue of costs. [2] When it became time to settle the order, the Registrar properly settled it with a provision, in accordance with the practice of this Court, that the successful respondent recover the costs of the appeal from the unsuccessful appellant, the petitioner, forthwith after taxation. [3] The appellant, between the pronouncing of judgment and the settlement of the judgments, made an assignment in bankruptcy and, if I am correct, was discharged. [4] Taking the view that the effect of his bankruptcy was to set at naught the judgment for costs, it being a debt, he sought from a judge of this Court in Chambers, in effect, an order deleting the provision as to costs in the order as settled by the Registrar. In the course of dismissing that application, the Chambers judge made some comment on whether the discharge in bankruptcy affected the right of the successful

respondent to recover the costs. [5] It is argued that that whole issue was never properly before the Chambers judge. All that the Chambers judge could be concerned with was whether or not the order of this Court in the appeal was properly settled by the Registrar, and the answer to that question was "yes". Whether the respondent in the appeal, also the respondent below, can recover the debt created by the judgment of February 1997 is not a matter to be decided in this Court under proceedings as they are now constituted. That issue will arise in the Court below, no doubt, if, as, and when the respondent attempts to execute upon the judgment. Whether or not this debt has been discharged by the operation of the Bankruptcy Act may be a matter for the Supreme Court of British Columbia in Bankruptcy in the first instance. That is for counsel to address. [6] HUDDART, J.A.: I agree. [7] MACKENZIE, J.A.: I agree. [8] SOUTHIN, J.A.: All right. Thank you, gentlemen. The Honourable Madam Justice Southin