Shah, Shah and Husain v. Waterford Developments Ltd.

Shah, Shah and Husain v. Waterford Developments Ltd.

A contingent, remote or evanescent liability (possible future indemnity arising from a third party action) cannot constitute equitable set-off against a presently owing liquidated mortgage debt; accordingly the petitioners are entitled to an order nisi of foreclosure and judgment for the redemption amount.

Citation
2009 BCSC 534
Parties
Petitioner: Muhammed Refik Shah; Petitioner: May Shah; Petitioner: Mohammed Husain; Respondent: Waterford Developments Ltd.; Respondent: Pal Sahota
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 April 2009
Procedural Posture
Foreclosure / Order Nisi Application
Outcome
Order nisi of foreclosure granted; respondents not permitted to set-off contingent Zenith claim; no stay ordered; judgment for redemption amount granted; costs awarded to petitioners.
Legal Topics
Foreclosure, Equitable Set Off, Redemption Period, Indemnity, Contingent Liabilities, Stay of Proceedings
Source Language
English
Property Law Equity Civil Procedure Contract Law Remedies Foreclosure Equitable Set Off Redemption Period +3 more

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Parties

Muhammed Refik Shah

Petitioner

May Shah

Petitioner

Mohammed Husain

Petitioner

Waterford Developments Ltd.

Respondent

Pal Sahota

Respondent

Procedural Posture

Foreclosure / Order Nisi Application

Legal Issues

  1. 1 Whether respondents entitled to equitable set-off of a contingent indemnity claim (Zenith claim) against the mortgage redemption amount
  2. 2 Whether the Zenith claim goes to the root of the transaction such that set-off should be allowed or a stay granted
  3. 3 Whether a contingent or remote liability can prevent immediate enforcement of a liquidated debt in foreclosure proceedings

Ratio Decidendi

A contingent, remote or evanescent liability (possible future indemnity arising from a third party action) cannot constitute equitable set-off against a presently owing liquidated mortgage debt; accordingly the petitioners are entitled to an order nisi of foreclosure and judgment for the redemption amount.

Court Disposition

Order nisi of foreclosure granted; respondents not permitted to set-off contingent Zenith claim; no stay ordered; judgment for redemption amount granted; costs awarded to petitioners.

Orders

  • Order nisi of foreclosure granted with a six-month redemption period commencing February 5, 2009
  • Redemption amount fixed at $56,424.13 as at February 5, 2009