No. S Vancouver Registry. the Supreme Court of British Columbia

Transcription

1 No. S Vancouver Registry the Supreme Court of British Columbia IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED : ~ IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP., and B.C. Ltd. BETWEEN: ROMSPEN INVESTMENT CORPORATION AND: Petitioner PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP., and B.C. Ltd. Respondents NOTICE OF APPLICATION Name of applicant: Romspen Investment Corporation To: All Parties set out on the Service List attached as Schedule "A" TAKE NOTICE that an application will be made by the applicant to the presiding Judge or Master at the courthouse at 800 Smithe Street, Vancouver, British Columbia on 09/Mar/2016 at 9:45 am for the orders) set out in Part 1 below. 1. The time for service of the Notice of Application and supporting material in respect of this application be and is hereby abridged such that the application is properly returnable on the day heard, and further, that any requirement for service of the Notice of Application and supporting material upon any interested party, other than the parties on Schedule "A", is hereby dispensed with. 2. Approval and Vesting Order substantially in the form attached in black-line version as Schedule "B" for Strata Lot 35, District Lots 220, 902 and 2897 Osoyoos Division Yale District, Strata Plan EPS1699. Legal`

2 2 3. Such further or other relief as may be necessary to enable the Respondents to complete the transaction contemplated under the pre-sale contract in connection with Strata Lot 35 of the lands that are the subject of this proceeding. Part 2: FACTUAL BASIS Under the provisions of the Companies' Creditors Arrangement Act, the court stayed proceedings against the Respondents upon the terms set out in the Initial Order (the "Stay"). 2. Since the commencement of the Stay, the Respondents have conducted their operations in the normal course, and D. Manning &Associates Inc., acting as monitor (the "Monitor"), has supervised the conduct of the Respondents. 3. The Respondents have entered into apre-sale contract with a purchaser for the duplex unit that is the subject of this application, as summarized in paragraphs 7 through 15 of the Monitor's Seventh Report to Court. 4. The Petitioner and the Respondents wish to complete the transactions contemplated by the pre-sale agreements and disburse the proceeds of sale to the charge-holders in accordance with the draft Approval and Vesting Order attached hereto. Part 3: LEGAL BASIS Rules 8-5 and 13-5 of the Supreme Court Civil Rules. 2. Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11 and Land Title Act, R.S.B.C. 1996, c. 250, ss Builders Lien Act, R.S.B.C. 1997, c. 45, ss. 24 and Paragraph 42 of the Initial Order made by Madam Justice Fitzpatrick on June 23, 2014 grants leave to hear any application in these proceedings on two (2) clear days' notice after delivery to all parties on the Service List of such Notice of Application and all affidavits in support, subject to the Court in its discretion further abridging or extending the time for service. Part 4: MATERIAL TO BE RELIED ON Monitor's Seventh Report to the Court dated July 23, th Affidavit of Cinda Ferguson, sworn March C'6~j, The applicant estimates that the application will take 20 minutes. Legal*

3 ~3 ~ This matter is within the jurisdiction of a master. Madam Justice Fitzpatrick is seized of this matter but has advised that the matter may proceed to Masters Chambers. TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to respond to this notice of application, you must, within 5 business days after service of this notice of application or, if this application is brought under Rule 9-7, within 8 business days after service of this notice of application, (a) file an application response in Form 33, (b) file the original of every affidavit, and of every other document, that: (i) you intend to refer to at the hearing of this application, and (ii) has not already been filed in the proceeding, and (c) serve on the applicant 2 copies of the following, and on every other party of record one copy of the following: (i) a copy of the filed application response; (ii) a copy of each of the filed affidavits and other documents that you intend to refer to at the hearing of this application and that has not already been served on that person; (iii) if this application is brought under Rule 9-7, any notice that you are required to give under Rule 9-7 (9). Cassels Brock & F3{~ck~dell ~~P Date: ~ Mar 2016 per: Signature appl~ ant yer for applicant Matthew Nied Legal'

4 ., To be completed by the court only: Order made in the terms requested in paragraphs this notice of application with the following variations and additional terms: of Part 1 of Date: Signature of Judge Master I_i»~i[ THIS APPLICATION INVOLVES THE FOLLOWING: discovery: comply with demand for documents discovery: production of additional documents other matters concerning document discovery extend oral discovery other matter concerning oral discovery amend pleadings add/change parties summary judgment summary trial service mediation adjournments proceedings at trial case plan orders: amend case plan orders: other experts Lega1~

5 Schedule "A" (List of Counsel) Part Counsel BORROWERS Ponderosa Peachland Development Limited Digby Leigh Partnership (formerly Treegroup Founders Digby Leigh &Company Limited Partnership) Highland Boulevard Treegroup Ponderosa Development Corp. North Vancouver, BC V7R 2N5 and B.C. Ltd. tel: fax: MONITOR D. Manning &Associates Inc. Douglas B. Hyndman Kornfeld LLP 11 QO 505 Burrard Street PO Box 11 Vancouver, BC V7X 1 M5 tel: fax: dhyndman@kornfeldllp.com GUARANTORS Hugh Porter CHARGEHOLDERS Romspen Investment Corporation Roderick S. Henderson Henderson Law Group Coppersmith Way Richmond, BC V7A 5J9 tel: fax: rsh@hlglaw.ca Steven D. Dvorak Cassels Brock &Blackwell LLP West Georgia Street Vancouver, BC V6C 3E8 tel: fax: sdvorak@casselsbrock.com Legal'

6 Party - Counsel Ponderosa Fund Kibben Jackson Fasken Martineau DuMoulin LLP Burrard Street Bentall 5 Vancouver, BC V6C OA3 tel: fax: kiackson(a~fasken.com svolkow@fasken.com Canadian Western Bank Central City Hardware (1980) Ltd. WRS (Lower Mainland) GP Inc. WRS (Lower Mainland) LP Jack Webster, Q.C. Webster Hudson &Coombe LLP West Georgia Street Vancouver, BC V6E 4H1 tel: fax: jmw@webhudco.ca Ron Labossiere Labossiere &Company 1726 Sonora Drive Kelowna, BC V1Y 8K7 tel: fax: ron@labossierelaw.com Peter Schreurs Burnaby Branch Manager WRS (Lower Mainland) LP 5784 Byrne Road Burnaby, BC V5J 3J3 tel: fax: peter.schreurs@westernone.ca Peter Schreurs Burnaby Branch Manager WRS (Lower Mainland) LP 5784 Byrne Road Burnaby, BC V5J 3J3 tel: fax: peter.schreurs@westernone.ca Legal'

7 Party - ~ Counsel Bricor Mechanical Ltd. Alfred C. Kempf Pushor Mitchell LLP Ellis Street Kelowna, BC V1Y 2N3 tel: fax: kempf@pushormitcheli.com Coast Wholesale Appliances Inc. Katie Long, C.C.P. Coast Wholesale Appliances Inc Main Street Vancouver, BC V5X 4W8 tel: fax: klong@coastappliances.com B.C. Ltd. (dba Budget Blinds) Terry McCaffrey Benson Law LLP 270 Highway 33 West Kelowna, BC V1X 1X7 tel: fax: tmccaffrevca~bensonlawllp.com and jskoreiko@bensonlawllp.com Trans Canada Lumber Inc. Versatile Siding Solutions Ltd. Mark Danielson Pushor Mitchell LLP Ellis Street Kelowna, BC V1Y 2N3 tel: fax: danielson@pushormitchell.com Yarden Gershony Rush Ihas Hardwick LLP Bernard Avenue Kelowna, BC V1Y 6N9 tel: fax: ygershony@rihlaw.com Legal"

8 r Part INTERESTED PARTIES B.D. Hali Construction Ltd. Justice Canada Tax Law Her Majesty the Queen in Right of the Province of British Columbia Sun Holdings Ltd. - Counse/ Mark Davies Richards Buell Sutton LLP # West Georgia Street Vancouver, BC V6B 5A1 tel: fax: mdavies@rbs.ca Jason Levine Department of Justice Canada Tax Law Service Howe Street Vancouver, BC V6X 2S9 tel: (J. Levine) fax: jason.levineca~1ustice.gc.ca Heather Wellman Aaron Welch David Hatter Ministry of Justice Legal Services Branch 4th floor, 1675 Douglas Street PO Box 9289 Stn Prov Govt Victoria, BC V8W 9J7 tel: fax: heather.wellman@gov.bc.ca aaron.welch@gov. bc. ca david. hatter(a~gov. bc. ca Ron Solmer Pushor Mitchell LLP Ellis Street Kelowna, BC V1Y 2N3 tel: fax: solmer@pushormitchell.com Legal"`

9 Party Counsel District of Peachland Sukhbir Manhas Young Anderson Nelson Street Box Nelson Square Vancouver, BC V6Z 2H2 tel: fax: manhas oun anderson.ca Mandate National Mortgage Corporation and Brian Markus Barry Charles Holdings Ltd. Barrister and Solicitor Hornby Street Vancouver, BC V6Z 2A4 Tei: Fax: bcm _lightspeed.ca calliec _lightspeed.ca Legal*

10 SCHEDULE "B" No. S Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENTS ACT, R.S.C. 1985, C. C-36, AS AMENDED I_1~T~7 IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP., AND B.C. LTD. I:i~i ~~l~~ l _ ~ ROMSPEN INVESTMENT CORPORATION Petitioner PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP. and B.C. LTD. Respondents ORDER MADE AFTER APPLICATION BEFORE MASTER 09 Mar 2016 THE APPLICATION of the Petitioner, Romspen Investment Corporation~~~~Q'o "Ro~oi~ior"\.,f +ho occo~c i mrjoriolirinc onrl r~rnr~or-fioc f rn~~e,.~~ p~~{~ coming on for hearing at Vancouver, British Columbia, on the 9th day of March, 2016; AND ON HEARING Matthew Nied, counsel for the Petitioner, and those other counsel listed on Schedule "A" hereto, and no one appearing for the remaining parties, although duly Legal`

11 2 served; AND UPON READING the material filed, including the Seventh Report of the Monitor dated July 23, 2015 (the "Report"); THIS COURT ORDERS AND DECLARES THAT: 1. The time for the service of the Notice of Application and supporting material in respect of this proceeding is abridged such that the proceeding is properly returnable on the day heard. and further, anv reauirement for service of the Notice of Application and supporting material upon any interested party is hereby dispensed with. 1-:2. The sale transaction (the "Transaction") contemplated by the Contract of Purchase and Sale dated March 4, 2015 and amended May 20, 2015, and July 10, 2015, (the "Sale Agreement") between +"~,,~ Q~~e~~-o~~Ponderosa Peachland Development Limited Partnership (formerly Treeyroup Founders Limited Partnership) and Treegroup Ponderosa Development Corp. (the "Seller") and Graham Baker Steeves "Sales Agent", of # Trails Place, Peachland, British Columbia, VOH 1X5 (the "~~r~h~~arbuyer"), a copy of which is attached as ~d+>~" - ' + +ho Qon Y-+Exhibit "A" to the 12th Affidavit of Cinda Ferguson sworn March 2016 is hereby approved, and the Sale Agreement is commercially reasonable. The deceiver-seller is hereby authorized and directed to take such additional steps and execute such additional documents as may be necessary or desirable for the completion of the Transaction and for the conveyance to the,--a,~"a?~~ v., Buyer of the assets described in the Sale Agreement (the "Purchased Assets"). ~ ~.. r.. ~.... ~ ~ ~ ~ ~ ~ ~ ~~ ~ a ~ ~~~ ~ ~ ~ I. ~ ~ ~ ~ ~ ~ ~ I ~ ~ u ~ ~ ~ ~.. ~. ~ 3. Upon presentation for registration in the Land Title Office for the Kamloops Land Title District of a certified copy of this Order, together with a letter from Owen Bird Legal`

12 3 LLP, solicitors for the R~«~~o~rSeller, authorizing registration of this Order, the British Columbia Registrar of Land Titles is hereby directed to: (a) enter the p~ ~r-~ ~~~; Buyer as the owner of the Purchased Assets, as identified in Schedule "B" hereto, together with all buildings and other structures, facilities and improvements located thereon and fixtures, systems, interests, licenses, rights, covenants, restrictive covenants, commons, ways, profits, privileges, rights, easements and appurtenances to the said hereditaments belonging, or with the same or any part thereof, held or enjoyed or appurtenant thereto, in fee simple in respect of the Purchased Assets, and this Court declares that it has been proved to the satisfaction of the Court on investigation that the title of the p~ ~,-~, ~"~~~TBuyer in and to the Purchased Assets is a good, safe holding and marketable title and directs the BC Registrar to register indefeasible title in favour of the,--~~a~e~buver o., as aforesaid; and (b) having considered the interests of third parties, to discharge, release, delete and expunge from title to the Purchased Assets all of the registered Encumbrances shown in Schedule "C", except for those listed in Schedule «p ~ -. ~ e - ~ _. ~ e.._ ~ ~ ~ 1 ~ u ~ ~ ~ ~ ~ ~ ~ ~ ~ ~. ~ ~ - ~ ~ ~ ~ t tom t. ~ ~ ~. ~ ~ ~ Legal*

13 4 anv other solicitor or Notary that Owen Bird Law Corporation may authorize on its behalf, as follows: (a) First, in payment of taxes, arrears of taxes, interest and penalties of taxes in respect of the Purchased Assets, including any arrears of utility rates or charges which constitute a lien against the Purchased Assets; bl Second. in aavment of the balance of real estate commission: (c) Third, to Romspen Investment Corporation, as the holder of the second mortgage on the Purchased Assets, in payment toward the balance due and owing to it under such mortgage for principal, interest and costs; provided however that, subject to the terms and conditions contained in paragraph 3 of the Order pronounced in this proceeding on January 15, 2015, as amended by Orders of February 27, April 7, July 27, and December 11, 2015, such funds may be retained and used by the Seller to defray permitted expenditures; and (d) Fourth, the balance, if any, be paid into Court to the credit of this proceeding_ 5. Notwithstanding paragraph 4 hereof, and pursuant to s. 88(2) of the Strata Property Act, R.S.B.C. 1998, c. 43, the Buyer shall hold back from the Purchase Price the sum of $1.00 until further Order of this Court, such amounts shall be charged by and subject to the security interests affecting the Purchased Assets, in the order of priorities existing as at the date of this Order. ~6. Subject to the terms of the Sale Agreement, vacant possession of the Purchased Assets, including any real property, shall be delivered by the R~~ ~~~Seller to the p~ zn-lrhra.~n~-,i ~ r Buyer at 12:00 noon on the Closing Date (as defined in the Sale Agreement), subject to the permitted encumbrances as listed on Schedule "D". ~-7. The!~~«~~o~; Seller, with the consent of the "~ ~~Buyer, shall be at liberty to advance the Closina Date to such earlier date as those parties may aaree. without the necessity of a further Order of this Court and shall be at liberty to extend the Closing Date to such later date as those parties may agree without the necessity of a further Order of this Court provided the Closing Date occurs "~~ e~-within 30 days of the date of this Order. ~8. Notwithstanding: (a) these proceedings; (b) any applications for a bankruptcy order in respect of the Bebts~ Respondents now or hereafter made pursuant to the Bankruptcy and Insolvency Act and any bankruptcy order issued pursuant to any such applications; and Legal'

14 ~7 (c) any assignment in bankruptcy made by or in respect of the Beb~e~Respondents, the vesting of the Purchased Assets in the ",--~;~",~~Buyer pursuant to this Order shall be binding on any trustee in bankruptcy that may be appointed in respect of the Be~e~Respondents and shall not be void or voidable by creditors of the e~respondents, nor shall it constitute or be deemed to be a transfer at undervalue, fraudulent preference, assignment, fraudulent conveyance or other reviewable transaction under the Bankruptcy and Insolvency Act or any other applicable federal or provincial legislation, nor shall it constitute oppressive or unfairly prejudicial conduct pursuant to any applicable federal or provincial legislation. ~9. THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal, regulatory or administrative body, wherever located, to give effect to this Order and to assist the Receiver and its agents in carrying out the terms of this Order. All courts, tribunals, regulatory and administrative bodies are hereby respectfully requested to make such orders and to provide such assistance to the Receiver, as an officer of this Court, as may be necessary or desirable to give effect to this Order or to assist the Receiver and its agents in carrying out the terms of this Order. X10. The Rte, ~~Petitioner or any other party have liberty to apply for such further or other directions or relief as may be necessary or desirable to give effect to this Order. -~-~~..11. The endorsement as to approval of form of this order by counsel for any party except the Petitioner is hereby waived. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: Matthew Nied Lawyer for the Petitioner By the Court. Registrar Legal*

15 Schedule A List of Counsel f'ari' Counsel Romspen Investment Corporation Matthew Nied D. Manning &Associates Inc. Douglas Hyndman Legal`

16 Schedule B Purchased Assets PID: Strata Lot 35, District Lots 220, 902 and 2897 Osoyoos Division Yale District Strata Plan EPS1699 together with an interest in the common property in proportion to the unit entitlement of the strata lot as set out on Form V (the "Purchased Assets") Legal*

17 Schedule C Claims and Charges to be deleted/expunged from title to Real Property The following charges registered against the title to the Purchased Assets: Charge Chargeholder No. Mortgage Romspen Investment Corporation LB Assignment of Rents Romspen Investment Corporation LB Mortgage Ponderosa Holdings (BOG) Limited LB Assignment of Rents Ponderosa Holdings (BOG) Limited LB Modification Modification CA CA LB LB LB LB CA CA LB L CA CA CA CA CA CA CA Legal"

18 Charge Chargeholder No. CA CA CA CA CA CA CA Legal"

19 Schedule D Permitted Encumbrances, Easements and Restrictive Covenants related to Real Property 1. The reservations, limitations, provisos and conditions expressed in the original grant thereof from the Crown. 2. The following charges registered against the title to the Purchased Assets: Charge Chargeholder No. Undersurface Rights The Director of Soldier Settlement E Statutory Right of Way The Corporation of the District of Peachland S8046 Covenant The Corporation of the District of Peachland S23133 Covenant The Corporation of the District of Peachland W64572 Undersurface Rights Her Majesty the Queen in Right of the Province of British Columbia KD48313 Statutory Right of Way FortisBC Inc. L Covenant The Crown in Right of British Columbia CA Covenant District of Peachland CA Covenant District of Peachland LB Covenant The Corporation of the District of Peachland LB Statutory Right of Way Gentility Systems Corp. CA Covenant Gentility Systems Corp. CA Statutory Right of Way British Columbia Hydro and Power Authority CA Statutory Right of Way Telus Communications Inc. CA Covenant District of Peachland CA Covenant District of Peachland CA Easement CA Easement CA Legal~

20 f Charge Chargeholder No. Easement CA Legal`

21 No. S Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ROMSPEN INVESTMENT CORPORATION Petitioner AND: PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP. and B.C. LTD. Respondents ORDER MADE AFTER APPLICATION (Vesting Order) CASSELS BROCK & BLACKWELL LLP Lawyers West Georgia Street Vancouver BC V6E 3C8 Matthew Nied Tel: Fax: M N/cef Lawyers for the Petitioner File Filing Agent: West Coast Title Search Legal*

22 No. S Vancouver Registry In the Supreme Court of British Columbia BETWEEN ROMSPEN INVESTMENT CORPORATION PETITIONER ~~ IN THE MATTER OF PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP (formerly Treegroup Founders Limited Partnership) and Others RESPONDENTS NOTICE OF APPLICATION CASSELS BROCK & BLACKWELL ~~P Lawyers West Georgia Street Vancouver, B.C. V6C 3E8 Telephone: (604) Facsimile: (604) Attention: Steven D. Dvorak SDD/cef Matter# Legal'