Doherty v. Bruneski, 2011 ABQB 146

Court of Queen ’ s Bench of Alberta Citation: Doherty v. Bruneski, 2011 ABQB 146 Date: 20110307 Docket: 1003 10690 Registry: Edmonton Between: Murray Doherty Plaintiff - and - Stephen Bruneski, SRB Wholesale Inc. and SRB Wholesale Inc. Carrying on Business As House of Thunder Defendants _______________________________________________________ Memorandum of Decision of W. Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] This is an application by the plaintiff for

summary judgment on what the plaintiff alleges was a loan of $51,000.00 to the defendants. [ 2 ] The defence is that the money advanced by the plaintiff was not a loan at all but was a down payment on the purchase of a motorboat for the price of $90,369.25 but that the plaintiff was unable to obtain financing to complete the purchase of the motorboat and subsequently agreed to take a 2006 custom built motorcycle and a 2009 Kawasaki motorcycle valued at $51,000.00 in lieu of the motorboat.

[ 3 ] There is no evidence filed by the defendants. The plaintiff argues that this is fatal to the defendants’ defence. I do not agree. [ 4 ] A genuine triable issue can be raised in ways other than by the respondent filing an affidavit. In this case the opposing evidence is the documentation and the conduct of the plaintiff. 1. The bill of sale for the custom built motorcycle is dated August 31, 2008 and has a notation on it: “sold as is where is” and the plaintiff registered the bill of sale at Motor Vehicles Branch as owner. 2.

The bill of sale for the Kawasaki does not have the notation “as is where is” but it has the following date feature on it “sold on date: 09/23/2009" . In addition, the figures are supportive of a sale rather than security: the price is $12,565.00, there is a tire tax of $10.00, and there is GST of $628.25. These are all indicia of a sale rather than security, but there is a handwritten notation in the bottom “as security against loan”.

In addition the plaintiff transferred the Kawasaki as a trade-in vehicle to Argyll Motor Sports on November 6, 2009 and received $9, 300.00 credit for it against a new BMW motorcycle. The bill of sale evidencing that transaction refers to the back of the document as follow “I have read the matter printed on the back hereof and agree to it as part of this order the same as if it were printed above my signature”. I could speculate that it might refer to the owner of the Kawasaki, the plaintiff, representing that he is the owner of the vehicle he is trading in.

The document does refer to him as the seller. [ 5 ] The plaintiff registered both the custom built motorcycle and the Kawasaki at Motor Vehicles Branch as owner. [ 6 ] So the situation is that the custom built motorcycle has a “sold as is where is” notation on it and the Kawasaki motorcycle is treated by the plaintiff as if he is the owner. [ 7 ] A warrant to seize was prepared by plaintiff’s counsel and served on the plaintiff but the motorcycle was not removed from the plaintiff’s possession.

The evidence is that the plaintiff did not know about this warrant but it seems from argument that he approved his counsel’s instructions to the Civil Enforcement Agency nunc pro tunc. [ 8 ] The plaintiff argues that if the defendants have any objection to the trade-in of the Kawasaki at $9,300.00 they ought to have raised that in the statement of defence as an improvident sale. It seems to me that that would be contradictory to the defendants’ defence, which of course is that there was a sale and the plaintiff is entitled to do with the Kawasaki or the custom built motorcycle whatever he likes.

I agree that that defence would not make sense in these circumstances. [ 9 ] It must be apparent that there is enough contradictory evidence and ambiguity surrounding whatever happened between the plaintiff and the defendants that this matter cannot be resolved in a

summary judgment manner. [ 10 ] The application is dismissed with costs to the defendants on the appropriate column. Heard on the 10 th day of December, 2010. Dated at the City of Edmonton, Alberta this 7 th day of March, 2011.

W. Breitkreuz M.C.C.Q.B.A. Appearances: Brian Doherty Doherty Schuldhaus LLP for the Plaintiff Wayne Throndson Fielding & Company LLP for the Defendants