Gleason v. Dawn Light ( The )
T-1903-96
Lutfy J.
9/5/97
8 pp.
Motion for summary judgment seeking dismissal of claim for specific performance of agreement of purchase and sale of ship, setting aside arrest warrant-Defendant disputing plaintiff's allegation binding agreement of purchase and sale on ground no acceptance of counter-offer-Defendant subsequently agreeing to sell ship to intervenor-Bill of sale executed in favour of intervenor-Statement of claim filed, warrant for arrest issued next day-Warrant, statement of claim served on ship late morning following day, intervenor registered as owner in early afternoon-Statement of claim seeking specific performance or damages-Intervenor beneficial purchaser for value without notice of plaintiff's earlier transaction-Court's jurisdiction under Federal Court Act, s. 22(2)(a) extending to any claim as to title, possession, ownership of ship, regardless of remedy-Specific performance should not be granted absent evidence property unique to extent that its substitute would not be readily available: Semelhago v. Paramadevan, [1996] 2 S.C.R. 415-No evidence ship unique, irreplaceable or in any way not adequately compensated for in damages-As ship sold to purchaser for value without notice, injustice would be visited on intervenor if specific performance ordered-In motion for summary judgment parties must put best foot forward-As plaintiff not establishing factual basis in support of remedy of specific performance, record disclosing no genuine issue for trial concerning availability of remedy of specific performance-Summary judgment granted in part, plaintiff's claim for specific performance of agreement for purchase and sale of ship dismissed-Denial of remedy of specific performance not of itself ending arrest of ship-Arrest against ship continuing notwithstanding plaintiff's failure with respect to remedy sought in specific performance for reasons in Beauchamp v. Coastal Corporation, [1984] 1 F.C. 833 (T.D.)-Action continuing in rem though limited to damages-Not open to Court to set aside arrest merely because remedy for specific performance not available to plaintiff-Arrest executed less than two hours prior to registration of intervenor's title in ship-Equally effective even if executed after registration of intervenor's interest as owner-Action in rem under Federal Court Act, s. 43(2) not depending on who is beneficial owner of ship when claim arising or when action brought as is case under s. 43(3) and (8)-Intervenor's remedy against any judgment that might be executed against ship forming part of claim against defendant with whom has outstanding mortgage-Federal Court Act, R.S.C., 1985, c. F-7, ss. 22(2)(a), 43(2) (as am. by S.C. 1990, c. 8, s. 12).