Mar 17, 2014

Summary of Hamm v. Metz

Hamm v. Metz, 1998 CanLII 13567 (SK QB)
Fire destroyed Hamm's residential property and an adjacent property owned and operated as a business by an individual and her corporation. A settlement was received by the occupants from SGI. Metz and a co-conspirator were found guilty of criminal arson in 1991. Metz was sentenced to six years in a Federal penetentiary. At issue was whether the conveyances of property by Metz to Hickmore and Talaber were fraudulent conveyances within the meaning of the Fraudulent Preferences Act or the Fraudulent Conveyances Act (Statute of Elizabeth).HELD: 1)A declaration issued that the transfers of real property from Metz to Talaber and Hickmore were void as against the plaintiffs and proven creditors of Metz. The Registrar was directed to cancel the certificates of title, issuing title in the name of the defendant Metz. The legal and financial position of Metz in 1991 (exacerberated by the guilty plea of her co-conspirator) together with her rapid liquidation of virtually all her properties and assets between August and November 1991; the conversion of the proceeds of this liquidation into cash ($100, $1,000 and bank bearer bonds) and the almost preposterous suggestion that Metz was hoodwinked out of all this money (approximately $220,000) by a fictitious person in Alberta without any scintilla of evidence must lead to no other reasonable conclusion but that the entire series of transactions including the sale of the three properties to the defendants, Hickmore and Talaber, was intended to place Metz's assets beyond the reach of creditors in circumstances where she was insolvent or potentially insolvent. These conclusions, coupled with the proximity of the relationship between Talaber (nephew but treated like a son) and Hickmore (Metz's paramour for over three years) and the overall suspicious circumstances raised a presumption of fraudulent intent between all three parties. 2)Judgment was entered against Talaber in the amount of $8,611.26 and against Hickmore in the amount of $34,586.04 representing the balance of a rental trust account for net rent derived from the properties. 3)The mortgage granted by Hickmore in favour of Talaber was void and registration was to be cancelled. 4)Talaber, or anyone acting on his behalf, held all proceeds from the sale of one of the properties in trust for the plaintiffs and other proven creditors. 5)Talaber and Hickmore were to provide a full accounting of all proceeds from the sales and rent. 6)Leave was granted to the plaintiffs to apply for further orders or variances as might be appropriate to give effect to the judgment. 7)The plaintiffs were awarded their taxed costs jointly and severally against the defendants under Column 4. 8)The list of badges of fraud is not exhaustive nor do they all need to exist to establish fraudulent purpose sufficient to shift the onus to the defendants to establsih an honest purpose. The Statute of Elizabeth intends that conveyances of property which are made in good faith to persons not having notice of the transferor's fraud be protected.