WHG INVESTMENTS LTD v UNTERSCHULTZ, 2020 ABQB 753
9.13: Re-opening case
The Applicant applied to the Court under Rule 9.13 to reconsider certain findings of fact in Justice Mah’s previous decision (the “Decision”).
The Applicant argued that His Lordship incorrectly characterized a loan agreement (the “Loan Agreement”) between a holding company (“AGPHL”) and two other individuals as a mortgage. The Applicant also claimed that allowing the Loan Agreement to determine how the sale proceeds from a commercial property ought to be distributed violated the Torrens system of land registration because the Applicant had filed a Certificate of Lis Pendens against the property before the distribution took place.
The Court noted that Rule 9.13 has been interpreted to mean that the Court should correct itself where it makes a blatant error of law and avoid forcing the parties to unnecessary Appeal. The Court also noted that Rule 9.13 should only be applied where the putative error is plain and manifest, not to relitigate matters already decided.
After reviewing the Decision, the Court dismissed the Application. His Lordship did not find any part of the Decision that characterized the Loan Agreement as a mortgage. The Loan Agreement was an advance on an existing mortgage in favour of AGPHL that reduced its share of the remaining sale proceeds. Further, the priorities applicable under the Torrens system remained the same because the Loan Agreement secured nothing against the property. The security for the new advances was the original mortgage, already in place.View CanLII Details