PRACTICE |
Judgments and Orders |
Summary Judgment |
Northwest Delta Yacht Services Inc. v. Sovereign Yachts (Canada) Inc.
T-468-03
2004 FC 304, Heneghan J.
2/3/04
22 pp.
Stephen Striebel (defendant) seeking (1) summary judgment against plaintiff pursuant to Federal Court Rules, 1998, rr. 213 et seq.; (2) order dismissing action against all defendants except Sovereign Yachts (Canada) Inc. (Sovereign); and (3) order directing payment out of balance of money paid into Court--Plaintiff B.C. corporation engaged in ship construction, repair--Commenced action both in personam against individual defendants and in rem against Motor Yacht Chairman--Defendant pleads plaintiff has no cause of action against him in absence of contractual relationship and work giving rise to this action done pursuant to contract between plaintiff and Sovereign--Defendant entered into contract for construction of yacht in 2000--Executed, registered ship's mortage--Problems arose with completion of construction contract--Commenced action (T-687-02) against Sovereign Yachts (Canada) Inc.--Ultimately, yacht delivered to defendant in international waters with duly executed bill of sale--Principles governing grant of summary judgment summarized in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.)--In so far as defendant concerned, determining question is whether plaintiff has good cause of action against him, on basis of facts alleged, evidence adduced and relevant law--Different sworn statements suggesting plaintiff attempting to create basis of claim against defendant but no reliable evidence supporting such claim--Neither contract nor breach of contract pleaded by plaintiff--No evidence supporting existence of contractual relationship between plaintiff and defendant--Defendant not, at all material times, beneficial owner of defendant yacht--Acting as mortgagee when commenced action to pursue remedies relative to construction of yacht--Defendant showing no genuine issue for trial arising against him disclosed in statement of claim--No issues of credibility relative to evidence of defendant--Plaintiff not entitled to raise collateral attack on status of mortgage granted by Sovereign to defendant for it was not party to mortgage and otherwise provided no evidence or argument as to why it should be allowed to challenge manner in which defendant acted in serving notice to enter in possession of defendant yacht, pursuant to that mortgage--Motion for summary judgment in favour of defendant granted--As to defendants Mrs. Striebel and yacht, defendant arguing time limited for service of statement of claim expired--Plaintiff not denying it has not served defendants Mrs. Striebel or yacht, but in relation to latter, argues it has right to "sue" funds deposited in cause T-687-02, to secure release of yacht from arrest warrant and caveats filed in that proceeding--R. 479 deals with manner in which statement of claim in rem to be served and specifically identifies kinds of property upon which service to be effected --Receipt and distribution of proceeds of Court-ordered sale of vessel governed by rr. 490, 491--Bail simply provides fund upon which successful plaintiff, after obtaining judgment, may execute judgment--Service of statement of claim in rem pursuant to r. 479(1)(d) relates to service upon proceeds of sale, not upon money deposited by way of bail--But defendant not entitled to dismissal of action against defendants Mrs. Striebel and yacht--Plain reading of r. 213(2) making it clear that defendant may seek summary judgment after serving, filing defence--No defence filed on behalf of other parties--Motion for summary judgment dismissing action against Mrs. Striebel and yacht Chairman dismissed--Motion for payment out of Court dismissed as must be brought in action in which money deposited--Federal Court Rules, 1998, SOR/98-106, rr. 213(2), 479, 490, 491.