Supreme Court

Decision Information

Decision Content

SUPREME COURT OF NOVA SCOTIA

Citation:  Credit Union Atlantic Ltd. v. Isenor, 2012 NSSC 183

 

Date:  20120501

Docket:  Hfx No. 356884

Registry:  Halifax

 

Between:     Credit Union Atlantic Limited                                                              

Plaintiff

                                                             v.

 

WBLI Incorporated, Trustee in Bankruptcy on behalf

of Derek Blair Isenor and Mary-Jane Isenor

                                                                                                            Defendants

 

LIBRARY HEADING

 

Judge:            The Honourable Justice Gerald R. P. Moir

 

Heard:           May 1, 2012    

 

Subject:         Mortgages; Surplus funds, competing claims

 

Summary:     How to distribute surplus funds in light of various claims?         

 

Issues:            A sheriff's sale generated a substantial surplus.  There were a number of builders' liens and two judgments.  Also, one of the defendants claimed to be entitled to funds in place of her Matrimonial Property Act interests.  Also, a lien claimant did not participate in the hearing of the motion for distribution and there was a question about whether proof of the claim would await a Builders' Lien Act trial.   

 

Result:           On a foreclosure, surplus funds stand in the stead of the foreclosed equity.  Therefore, builders' liens that arose before an order under the Matrimonial Property Act take priority over rights under the Act.  The motion for surplus funds, not a trial under the Builders' Lien Act, is the right forum in which to prove a builder's debt and security because the lien has been foreclosed.

 

 

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