Caplink Mortgage Investors Corporation v. Kretschmer, 2012 ABQB 396

Court of Queen ’ s Bench of Alberta Citation: Caplink Mortgage Investors Corporation v. Kretschmer, 2012 ABQB 396 Date: 20120614 Docket: 1103 13175 Registry: Edmonton Between: Caplink Mortgage Investors Corporation and Cedar II Mortgage Corporation Plaintiffs - and - Dennis Kretschmer and Bonnie Lynn Kretschmer Defendants _______________________________________________________ Memorandum of Decision of L. A.

Smart, Master in Chambers _______________________________________________________ [ 1 ] The Plaintiff seeks review of the reduction in the Foreclosure Bill of Costs proposed by the Assessment Officer after assessment under Rule 10.41 as required under Rule 9.35(1)(b). Although a certificate was not issued under Rule 10.43 as contemplated by Rule 9.35(1)(v), the Plaintiff ostensibly re-attended before me (the Master who granted the order) to settle the costs or give further direction on the basis that the Bill of Costs had not yet been filed pursuant to Rule 9.35(4).

It has not been the practise of the Assessment Officer to issue certificates but to return the Bill of Costs with a cover sheet setting out what she would be prepared to allow. Although not technically correct, the substance of the practise conforms with the Rule. Were this the only issue I would have proceeded under Rule 9.35(4), however, the Rule also requires that re-attendance take place before the Order is entered. Out of necessity the Order was entered to facilitate the closing of a sale to a third party purchaser. This is one of a number of practical difficulties arising from the new Rules to be addressed.

Regardless, as a consequence, it is not open for me to review the Bill of Costs. [ 2 ] Furthermore, this Bill of Costs was presented to the Assessment Officer on a without notice basis. The Order does not recite

[ 2 ] Furthermore, this Bill of Costs was presented to the Assessment Officer on a without notice basis. The Order does not recite that counsel had appeared on behalf of the Defendant. As the “ Defendant ” appeared pursuant to the Order. Rule 10.37 applies and (unless consent to the Bill of Costs has been given), notice must be given to counsel of the assessment so that he may appear. [ 3 ] I decline to review the matter and counsel should proceed accordingly. There shall be no costs to the Plaintiff for this application. Heard on the 23 rd day of April, 2012.

Dated at the City of Edmonton, Alberta this 14 th day of June, 2012. L. A. Smart M.C.C.Q.B.A. Appearances: Michelle Simpson Simpson Law for the Plaintiffs