Mar 17, 2014

Summary of Hamm v. Metz

Hamm v. Metz, 2002 SKCA 11 (CanLII)
An appeal from a judgment declaring certain sales of real property void under the Fraudulent Preferences Act and Fraudulent Conveyances Act as being part of a fraudulent scheme to defeat the vendor's creditors. The transactions were set aside and judgment for an accounting was awarded against one purchaser respecting a property, which had been resold. Both purchasers were required to account for rentals received from properties remaining in their possession over 6 years between the sale and trial dates. The purchasers' main ground of appeal was that the evidence did not support a finding of any fraudulent intent on their part. Hickmore also contended his property was exempt from seizure under the Exemptions Act and fraudulent conveyances legislation, as it had been the residence of the vendor. A house owned by Metz and adjacent buildings owned by the Hamms and Oraczewaka were destroyed by fire in 1990. Metz, who was convicted of four offences under the C.C.C. including arson and sentenced to 6 years imprisonment, did not defend this action nor was called to give evidence. By the time the Hamms and insurers obtained a Mareva injunction, Metz had disposed of substantially all her property and emptied her bank accounts. She liquidated her properties in 1991, including three to Talaber and Hickmore and claimed to have lost all of the $220,000. The appellants argued the action must be representative of all creditors of Metz and Joan Carol Store and Oraczewaka were joined as plaintiffs as a result. The Hamms and their insurer's action in tort for damages arising from the fire was still pending.HELD: 1)The appeal was allowed to the extent that the relief granted against Talaber for proceeds of the sale and rental of the three properties was in favour of the Store and Oraczewaka and all other proven creditors of Metz rather than in favour of the Hamms. In all other respects, the judgment against Talaber was confirmed. 2)The relief granted against Hickmore voiding the transfer of two properties was confirmed. A further condition added Hickmore would have a first charge on the property for $32,000 being the exemption to which Metz was entitled on the date of the transfer and which she was able to transfer, notwithstanding the transfer was determined to be fraudulent. Amounts in excess of the $32,000 were available to the creditors of Metz. Hickmore shall bear his pro rata proportion of costs of the realization. 3)Rental amounts received by Hickmore were reduced to 48/80 to allow for his equity in the property and the judgment was amended in favour of the proven creditors of Metz. 4)The trial judge was fully aware the transcript of evidence given by Metz on examination in aid of injunctive relief was admissible only against Metz and could not be considered in relation to Talaber and Hickmore. 5)The failure to give Hickmore an opportunity during cross-examination to give his explanation of the interview with the investigator did not in the circumstances render the rebuttal evidence inadmissible. The trial judge specifically found Hickmore's evidence to be false. Hickmore's counsel objected to case-splitting, but made no request to give evidence in reply and took no issue with the accuracy of the rebuttal evidence. The trial judge took all of the circumstances into account when deciding to admit the evidence and when deciding what weight to give it. In any event, it would not affect the result of this appeal. 6)The well known standard of review is still that set out in Lensen v. Lensen and Long Lake School Division v. Schatz. 7)While the Hamms had status to sue under the Statute of Elizabeth they could not succeed in this action because they had not yet proven their claim against Metz. However, it was open to give judgment in favour of Oraczewaka and Joan Carol Store, both judgment creditors of Metz, as they had been joined as co-plaintiffs. Under s.13 of the Fraudulent Preferences Act (which applies to conveyances set aside under the Statute of Elizabeth), all monies realized must be shared amongst all creditors. 8)Although Tencha has been much criticized, the principle behind it is logical: if property is exempt from seizure, disposition of it cannot by definition hinder, delay or defraud creditors within the meaning of the Statute of Elizabeth. Metz was entitled to convey her exempt interest to Hickmore. The Court took into consideration the line of authority canvassed in Higgins v. McNabb and s.180 of the Land Titles Act. 9)There was ample evidence to support the finding of fact that Metz knew she was on the eve of insolvency at the time of the impugned transactions. 10)Given the circumstances of the transactions, the relationship between Metz and the appellants, and the badges of fraud referred to by the trial judge, there was a prima facie case sufficient to entitle the court to make a finding of fraudulent intent in the absence of credible evidence to the contrary. 11)It was open to the trial judge to make the order under s.13 in favour of the co-plaintiffs. However, in view of s.13(3), the money should have been paid into court to be available for the general benefit of all creditors and paid out upon application. The Hamms, who were mere claimants in tort, have to establish their right to share in these funds. 12)The appellants were obligated under the principles of natural justice and equity to refund the money. The Statute of Elizabeth declares the transactions void, thus they should not be entitled to keep any profits from rentals when they would be unable to retain any benefit from disposing of the property. The notion of accountability for rent is derived from constructive trust imposed as a remedy for unjust enrichment. Any amount recovered should be distributed amongst all creditors of Metz, as required by s.13 of the Fraudulent Preferences Act. 13)All of the parties were to bear their own costs.