IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Date: Docket: S Registry: New Westminster Between: Frank Rayner Plaintiff And: Lorraine Arnbjurg Rayner, Executrix of the Estate of Anna Lindortf, Deceased Marcia Lorraine Rayner, Executrix of the Estate of Anna Lindorff, Deceased Frank Gerald Rayner, Lorraine Arnbjurg Rayner, April Lorraine Rayner Defendants -and- Docket: Registry: Prince George Between: Pearl Janice Watt Plaintiff And: April Lorraine Rayner, Lorraine Arnbjurg Rayner, Executrix of the Estate of Anna Magnea Lindorff, Deceased and Marcia Lorraine Rayner, Executrix of the Estate of Anna Magnea Lindorff, Deceased Defendants Before: Madam Justice Wedge Oral Reasons for Judgment May 30, 2008

2 Page 2 Plaintiff ln Person: Counsel for Rayner/Lindorff: Counsel for April Rayner: Place of Trial/Hearing: F. Rayner C.P. Dyson D. Magnus New Westminster, B.C. t1l THE COURT: There are two applications before the court. The first is an application by the defendants in both actions seeking removal of the two certificates of pending litigation currently registered against the subject property at 3620 Devon Road in Port Coquitlam. Those CPLs were registered by the plaintiff, Pearl Janice Watt, pursuant to the action she commenced in the Prince George registry and by the plaintiff, Frank Rayner, in the action he commenced in the New Westminster registry. Í21 The second application is brought by the defendants in the two actions, who seek to consolidate the actions or have both actions heard together pursuant to Rule 5(8) of the Rules of Court. t3l A third application to have the Prince George action transferred to the New Westminster court registry for all purposes is now the subject of a consent order. t4l I am giving oral reasons in these applications because there is some urgency to their disposition. The facts underlying the two applications are succinctly described in the written outline of the defendant, April Lorraine Rayner, and the submissions of counsel for Ms. Rayner, and I wifl place both ín the file.

3 Page 3 tsl Having reviewed the affidavit material underlying the submissions, I accept the facts described in the submissions as accurate for the purposes of these applications. t6l The first issue is whether the pleadings of the plaintiff, Ms. Watt and the plaintiff, Mr. Rayner give rise to a claim of an estate or interest in land. A CPL can be removed on the basis of either having been improperly filed or hardship: Lament v. Constantini (1985), 67 B.C.L.R. 328 (S.C.). The threshold question is whether the certificate was properly based on a proprietary claim against the land. I7l Mr. Rayner's pleadings in the claim for relief assert an interest in land. He claims five acres of the property in issue, which constitutes 17.8 acres in total. lt is alleged that those five acres were promised to him in an oral agreement with the deceased, Anna Lindorff, and that he did certain work in furtherance of the oral agreement. However, that alleged agreement, according to the pleadings, took place in lt is alleged in the statement of claim that that agreement was amended in 1998 so as not to provide an interest in the property but rather an interest in the estate of Anna Lindorff. t8l The plaintiff, Mr. Rayner, says the amended agreement was imposed on him, but that he ostensibly accepted it. ln any event, no claim was made in 1998 asserting the earlier alleged oral agreement, and any claim would now be statute barred. The alleged oral agreement would not be enforceable as against the defendant, April Rayner, in any event.

4 Page 4 tgl As the pleadings currently stand, Mr. Rayner does not have a proprietary claim against the property in question. His pleadings do not disclose a claim that the transaction between Anna Lindorff and the defendant, April Rayner, was improvident, nor does he have standing to bring such a claim on the pleadings as filed. t10l The plaintiff Watt's claim is restricted to a claim that the amount of the mortgage owing by the defendant April Rayner under the agreement with Anna Lindorff ought to be paid to the estate. There is no claim in the pleadings, as they currently stand, that the agreement itself was improvident. The claim disclosed by the pleadings may or may not be based on a proprietary claim against the land. I am of the view that it likely does not. lt is simply a claim in debt or damages by the estate bought by a beneficiary of the estate. However, I do not have to decide that issue because I accept, on the basis of the affidavit evidence, that the claim of hardship advanced by the defendant, April Rayner, has been established. She wishes to sell the property, and is prepared to pay a sum of money to be held in trust by solicitors for the executors from the proceeds of the sale of the property. [11] The executors are in agreement with that course of action. The payment would secure the claim of Ms. Watt, which is a claim for the amount owing by the defendant, Ms. Rayner, pursuant to the transaction between her and the deceased, Anna Lindorff. 112) The only question is the precise amount of the mortgage owing, and the evidence at this stage of the proceedings is not entirely clear on the issue. That

5 Page 5 being the case, I have concluded that April Rayner ought to pay the amount of $700,000 from the proceeds of the sale of the property, in trust. t13l I will return to the conditions of the order but I will first turn briefly to the Rule 5(8) application. No trial dates have been set in this matter. No discoveries have been conducted. There has been some discovery of documents but I understand that a great deal more discovery of documents will be required. 114l Consolidation is, as a general rule, appropriate where the parties are the same and the issues are in common such that the disposition of one action will necessarily result the disposition of the other. That is not the case here. In this case, there are two separate plaintiffs and their claims against the defendants are based on somewhat different facts, although some of the facts do overlap. The actions are at similar stages in the proceedings. [15] However, the claim of the plaintiff, Ms. Watt, is quite straightforward. As I have indicated, she seeks payment of the money owing by the defendant, April Rayner, to Ms. Lindorff, in the original transaction. The claim of the plaintiff Rayner is much more complex. While it is a claim against the same property, it involves significa ntly d ifferent facts. t16l lt may well be that at a later stage in the proceedings it will be appropriate to order that these two actions be heard together. However, it is simply too early in the proceedings to make that order. I have concluded that the application to consolidate must be dismissed, and so order, but the defendants are at liberty to apply to have

6 Page 6 the actions consolidated or heard together when the proceedings are at a more advanced stage. 117) My orders are as follows: 1. The certificates of pending litigation filed by the plaintiff, Watt, in her action and the plaintiff, Rayner, in his action, shall be removed from the property. 2. The property shall be offered for sale forthwith, with the defendant, April Rayner, having conduct of the sale. 3. The defendant, April Rayner, shall be enjoined from granting or incurring any new mortgages, charges or encumbrances against the property. 4. Notwithstanding paragraph 3, the defendant, April Rayner, may register new mortgages against the property provided that the funds from any new mortgages are applied to retire existing charges registered against title and the loan owed to the estate of Anna Lindorff. 5. lmmediately upon sale of the property, and after payment of all charges on title, taxes, the usual adjustments between vendor and purchaser and listing commission, the defendant, April Rayner, shall pay $700, to Chris Dyson, solicitor for the executors, to be held in trust pending further order of the court, or written agreement of all parties in each action. 6. A copy of this order shall be provided to the listing agent for the property. 7. No further certificates of pending litigatíon will be filed against the property without leave of the court. The application pursuant to Rule 5(8) is dismissed with liberty to the defendants to reapply when the proceedings are at a more advanced stage. 118l Counsel for the defendants in the New Westminster action have asked for a term of the order dispensing with the signature of Mr. Rayner. On what basis does counsel seek that term?

7 Page 7 t19l MR. DYSON: Well, he is unrepresented and as time is of the essence, I just do not want any problems on that end. Í2Ol THE GOURT: Mr. Rayner, do you understand what is being sought here? I21l MR. RAYNER: No. l22l THE GOURT: Legal counsel, either Mr. Magnus or Mr. Dyson, will be drafting the order. l23l MR. MAGNUS: I will draft the order, My Lady. I24l THE GOURT: Mr. Magnus will be drafting the order and the order will be drafted in the terms I have described. Madam Registrar has noted the orders and they are also on tape, but I am also going to make a note of the orders. The order will be checked against the notes. The parties sign the order not to indicate their agreement with it - and I am sure, Mr. Rayner, that you do not agree with it - signature is simply to indicate that the terms of the order are indeed those pronounced by the court today. On that basis I am prepared to dispense with Mr. Rayner's signature. That will be the final term of the order. but the t25) MR. MAGNUS: Just to clarify and confirm that there is the transfer in the Prince George registry. [26] THE COURT: Yes, that term should be included in the order. The Prince George action number will be transferred to the New Westminster registry for all purposes.

8 Page I l27l MR. DYSON: My Lady, costs. I would ask for costs in any event to the estate from both actions. I28l MR. MAGNUS: And to the applicant, April Rayner. I29l THE GOURT: ln the circumstances, it is my view that costs should be in the cause. t30l MR. MAGNUS: ln both actions. t31l THE COURT: Yes. l32l MR. MAGNUS: Just to clarify, there will be two orders -- for Mr. Rayner, there will probably be two orders because there is one in each action. t33l THE COURT: Yes, there should be two orders. I34l MR. DYSON: Thank you, My Lady. t35l THE COURT: Madam Registrar, do you have those terms? t36l THE REGISTRAR: Yes. t37l THE GOURT: I am going to return these voluminous materials to counsel. I will, however, place the outlines and counsel's written submission in the file because I have referred to them in my reasons. t38l The amended statement of claim has been handed up, as has Mr. Rayner's affidavit.

9 Page 9 t39l MR. MAGNUS: That has been entered in the court registry. [40] THE COURT: That has been entered I believe. Í411 MR. DYSON: Yes. Í421 THE COURT: Thank you. t43l MR. DYSON: Thank you, My Lady. fuc^4. I The Honourable Madam Justice C. A.\úVedge

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