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.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.