Date: 19971203
File: T-1452-92
MONTRÉAL, QUEBEC, THIS 3rd DAY OF DECEMBER 1997
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
THIERRY VAN DOOSSELAERE,
IN HIS CAPACITY AS TRUSTEE, REPRESENTING
UNITED MARITIME BELGIUM N.V.,
Plaintiff,
AND
UNISPEED GROUP INC.,
and
SGS SUPERVISION SERVICES INC.,
Defendants,
AND
ROYAL BANK OF CANADA,
Garnishee.
Motion by the plaintiff for a garnishee order absolute against the garnishee, ROYAL BANK OF CANADA, with costs.
[Rule 2300 of the Federal Court Rules]
ORDER
It is ordered that the garnishee pay to the judgment debtor, upon service of this garnishee order absolute, the sum of $42,469.98 with daily interest at the rate of 9%, from June 12, 1997, until the date payment is made. In addition to that amount the garnishee shall pay $200 representing the total costs of obtaining this order and of the garnishee order to show cause.
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
Date: 19971203
File: T-1452-92
Between:
THIERRY VAN DOOSSELAERE,
IN HIS CAPACITY AS TRUSTEE, REPRESENTING
UNITED MARITIME BELGIUM N.V.,
Plaintiff,
AND
UNISPEED GROUP INC.,
and
SGS SUPERVISION SERVICES INC.,
Defendants,
AND
ROYAL BANK OF CANADA,
Garnishee.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is a motion by the judgment creditor (the creditor) for a garnishee order absolute against the garnishee under Rule 2300 of the Federal Court Rules.
[2] A garnishee order to show cause was made on June 12, 1997. Essentially, the garnishment of June 12 placed the sum of $42,469.98 under interim garnishment.
[3] It is the creditor's view that that sum represents the interest still owing by the judgment debtor (the debtor) pursuant to the judgment of this Court dated January 27, 1997 (the judgment), which provided:
| For these reasons, the defendants are to jointly and severally pay to the plaintiff the sum of 130 674 $ Can., together with interest at the prevailing Belgian commercial lending rate plus 2% per annum, compounded semi-annually, from October 15, 1991 through the date of Judgment as well as post-Judgment interest at the same rate until payment. |
(Emphasis added)
[4] Here it should be noted that it is the debtor who is disputing the creditor's ability to obtain a garnishee order absolute, and not the garnishee, as is usually the case. In the circumstances, it is open to the debtor to do so.
[5] In its dispute, the debtor has sought by motion to have the interim garnishment set aside for reasons that do not appear to me to be sufficient to found the remedy sought. Accordingly, the garnishment will not be set aside as requested.
[6] The other grounds that the debtor argued against the interim garnishment actually relate to the appropriateness of not giving final confirmation of the garnishment.
[7] According to the debtor, it was wrong to argue in June 1997 that it still owed a balance of interest under the judgment, since in its view the payment it made to the creditor in the amount of $79,691.39 in April 1997 settled the question of the interest owing under the judgment totally and completely.
[8] The creditor acknowledges that it received the $79,691.39. However, the reason that it claimed an additional $42,469.98 in June 1997 is because based on the calculations on which it is relying, the interest owing under the judgment amounts to a total of $122,161.37.
[9] The nub of the problem lies in the fact that the parties do not take the same approach in calculating what the expression "prevailing Belgian commercial lending rate", which was used in the judgment, may mean in terms of the interest rate during the period from October 1991 to May 1997.
[10] The evidence on this point conflicts.
[11] The debtor contends that this expression means the rate granted in Belgium on credit instruments with a term of one year or more. In fact, the calculations done on this point reflect the prevailing rate on two-year credit.
[12] The creditor contends that this expression means the prevailing rates on short-term loans.
[13] Each of the parties relies on calculations and statements from different banks in Belgium.
[14] After considering the evidence submitted by both sides at length, and hearing counsel for the parties, I have come to believe that the approach to be taken in this case is the one proposed by the creditor. The calculations submitted by the creditor in the application for the show cause order will therefore be used.
[15] It seems to me that in order to resolve the dispute and avoid making arbitrary decisions in this respect, we should refer to the original nature of the issue between the parties.
[16] According to counsel for the creditor - counsel for the debtor not having contradicted him on this point - the amount awarded in the judgment represents the amount that the then plaintiff had to draw from its short-term line of credit to cover the freight for a cargo on board a vessel. Since it may be agreed that the line of credit in question consists of a short-term credit instrument, it seems to me to be possible to use the same basis for disposing of the present issue between the parties.
[17] Accordingly, a garnishee order absolute will issue for the sum of $42,469.98, but with daily interest starting on June 12, 1997 that is different from the interest referred to in the garnishee order to show cause. The interest will be fixed at a rate of 9%, as suggested by counsel for the creditor. The Court fixes the costs for obtaining this order and the show cause order in a total of $200.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
December 3, 1997
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court file No. T-1452-92
between
| THIERRY VAN DOOSSELAERE, IN HIS CAPACITY AS TRUSTEE, |
REPRESENTING UNITED MARITIME
BELGIUM N.V.,
Plaintiff,
" and "
UNISPEED GROUP INC. and
SGS SUPERVISION SERVICES INC.,
Defendants,
" and "
ROYAL BANK OF CANADA,
Garnishee.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1452-92
STYLE OF CAUSE: THIERRY VAN DOOSSELAERE, IN HIS CAPACITY
AS TRUSTEE, REPRESENTING UNITED MARITIME
BELGIUM N.V.,
Plaintiff,
AND
UNISPEED GROUP INC.,
and
SGS SUPERVISION SERVICES INC.,
Defendants,
AND
ROYAL BANK OF CANADA,
Garnishee.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 1, 1997
REASONS FOR ORDER BY: Richard Morneau, Prothonotary
DATE OF REASONS FOR ORDER: December 3, 1997
APPEARANCES:
Bernard Twyford Raymond for the plaintiff
Marc De Man for the defendant Unispeed Group
| Peter Richardson for the defendant SGS Supervision Services Inc. |
SOLICITORS OF RECORD:
Bernard Twyford Raymond for the plaintiff
Montréal, Quebec
Marc De Man for the defendant Unispeed Group
Gottlieb & Pearson
Montréal, Quebec
| Peter Richardson for the defendant SGS Supervision Services |
Mackenzie Gervais Inc.
Montréal, Quebec