Supreme Court

 CASE NO.                 VOL NO.

ALIANT TELECOM INC.                                                                                             PLAINTIFF

- and -

3007620 NOVA SCOTIA LIMITED, carrying                            

on business as “Tallships Internet”                                                                  DEFENDANT

Justice Walter R. E. Goodfellow            Halifax, Nova Scotia                   S.H. No. 165537

                     [Cite as:  Aliant Telecom Inc. v. 3007620 Nova Scotia Ltd., 2001 NSSC 152]

                                                            LIBRARY HEADING

DATE HEARD:        October 29^th and 30^th, 2001

DECISION:               October 31^st, 2001  (Orally)

SUBJECT:               CONTRACT - FRAUDULENT PREFERENCE

SUMMARY:              D. Eisner operated internet provider service to South Shore permitting area clients to use internet without long distance toll.  Initial base sources available to him sold necessitating search for backbone or pipeline and he turned to Aliant.  Incorporated Company and continued services under “Tallships Internet”.  Died December, 1998, widow took over.  Sold Company and “Tallships Internet” to D. Zinck as a going concern with transfer of all shares, accounts, client list, etcetera.  Findings of fact, Zinck was made fully aware of assets and liabilities and Zinck expressed prior to purchase as a going concern that he would expect to work out a payment schedule for the debt to Aliant.  Agreement the 22^nd of June, 2000, some payments made post the Agreement, then Zinck incorporated a new numbered Company and created “Tallships On-Line” to which he transferred without consideration the client list.

Determined indebtedness at $99,073.50, disallowed claimed invoice interest Robb (K.W.) & Associates Ltd. v. Wilson (1998), 169 N.S.R. (2d) 201 (C.A.).  Onus on Aliant met Whiteway v. Courtland Prop. Inc. (1997), 162 N.S.R. (2d) 161.  Not necessary to obtain Judgment before seeking declaration avoiding transfer.  Court must, as it did, determine entitlement to a Judgment before considering Assignment and Preferences Act and Statute of Elizabeth.  To require an actual Judgment would necessitate two lawsuits and provide debtor a further opportunity by delay, etcetera, to continue fraud against creditor.

Offer to settle at $55,000.00 not accepted, Tariff A, Scale 3 costs of $7,325.00 increased by one-third for costs taxed of $9,766.00.  Disbursements claimed of $2,334.32 reduced to $1,334.32 (Wyatt v. Franklin (1993), 123 N.S.R. (2d) 347.  Aliant entitled to Judgment and declaration voiding transfer of client list to new numbered Company and “Tallships On-Line” accounting, etcetera.