Verlaan Investment Inc. v. Windmill Ventures Ltd.

Verlaan Investment Inc. v. Windmill Ventures Ltd.

The application judge found that the questions whether the purchase and sale contract governs only the original mortgage or also subsequent renewals, and whether the May 2012 payment cured any default, raised triable issues not incapable of success; accordingly the foreclosure petition was properly referred to the trial list for determination of whether the respondents are in default under the mortgage.

Citation
2012 BCSC 1580
Parties
Petitioner: Verlaan Investment Inc.; Respondent: Windmill Ventures Ltd.; Respondent: Ted Mitchell Olenczuk; Respondent: Tim Robin Olenczuk; Respondent: Peoples Trust Company
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 September 2012
Procedural Posture
Foreclosure Petition (mortgage Enforcement) / Application Heard; Petition Referred to Trial List for Determination of Triable Issues
Outcome
Foreclosure petition referred to the trial list to determine whether respondents are in default under the mortgage, with costs in the cause.
Legal Topics
Foreclosure, Default, Mortgage Terms, Contract Interpretation, Trial Referral, Setoff, Negligent Misrepresentation, Breach of Contract
Source Language
English
Property Law Mortgage Law Contract Law Civil Procedure Foreclosure Default Mortgage Terms Contract Interpretation +4 more

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Parties

Verlaan Investment Inc.

Petitioner

Windmill Ventures Ltd.

Respondent

Ted Mitchell Olenczuk

Respondent

Tim Robin Olenczuk

Respondent

Peoples Trust Company

Respondent

Procedural Posture

Foreclosure Petition (mortgage Enforcement) / Application Heard; Petition Referred to Trial List for Determination of Triable Issues

Legal Issues

  1. 1 Whether respondents are in default under the mortgage
  2. 2 Whether the purchase and sale contract's terms govern only the original mortgage or also subsequent renewals
  3. 3 Whether a payment accepted after mortgage maturity (May 2012) cures default or constitutes only interest

Ratio Decidendi

The application judge found that the questions whether the purchase and sale contract governs only the original mortgage or also subsequent renewals, and whether the May 2012 payment cured any default, raised triable issues not incapable of success; accordingly the foreclosure petition was properly referred to the trial list for determination of whether the respondents are in default under the mortgage.

Court Disposition

Foreclosure petition referred to the trial list to determine whether respondents are in default under the mortgage, with costs in the cause.

Orders

  • Refer petition to the trial list to determine whether Windmill is in default under the mortgage, specifically addressing (a) interpretation of the purchase and sale contract as it applies to the mortgage and renewals and (b) characterization of the May 2012 payment
  • Costs of the application to be in the cause