KAZAKOFF ESTATE v CAMROSE CROWN CARE CORPORATION, 2016 ABQB 99
1.4: Procedural orders
4.22: Considerations for security for costs order
7.3: Summary Judgment (Application and decision)
The Court considered two related Actions together. Devtex Ltd. (“Devtex”) and the Estate of Polly Kazakoff, as mortgagees, applied for Summary Judgment in respect of a mortgage (the “Camrose Mortgage”), with Camrose Crown Care Corporation as mortgagor. Devtex, as mortgagee, also applied for Summary Judgment in respect of another mortgage (the “Melville Mortgage”), with 330906 Alberta Ltd. as mortgagor. The Respondents were judgment creditors of the mortgagors who were not parties to the Action; they sought to intervene in the foreclosure Applications in order to have standing, and raised a limitations defence in respect of the Summary Judgment Applications. Further, they argued that the debt underlying the Camrose Mortgage had been repaid, such that the Melville Mortgage should secure less than was alleged by the mortgagees.
Justice Hall held there was an insufficient evidentiary record to determine Summary Judgment and directed the judgment creditors to file Statements of Defence on behalf of the mortgagors. Summary Judgment or Summary Dismissal could be sought with further evidence.
The Plaintiffs also applied for an Order for Security for Costs against the Defendant mortgagors. Hall J. observed that “[a]lthough the permit such an order against a defendant, it is rarely granted”. His Lordship noted that, where a party has “just missed” summary judgment, or where a party consistently flouts Court Orders, Security for Costs may be appropriate. Further, where there is evidence that defendants are “improperly arranging their affairs” during litigation in order to avoid a Judgment, Security for Costs may be justified. Justice Hall held that the applicable circumstances and not give rise to an award for Security for Costs.View CanLII Details