Annacis Auto Terminals ( 1997 ) Ltd. v. Cali ( The )
T-1261-98
Hargrave P.
7/9/99
18 pp.
Plaintiff, owner of terminal and dock facility on Fraser River at Annacis Island, seeking payment of C$58,252.80 to pay balance of moorage to date, from proceeds of sale of ship Cali-International Trust and Finance Corporation (ITFC), mortgagee of ship, concerned sale proceeds will be absorbed to unreasonable degree by ongoing moorage, seeking r. 399(2) variation of earlier orders which in effect gave priority to ongoing moorage claim of plaintiff-Cali at berth at Annacis Island terminal since December 5, 1996-Order for sale of Cali issued August 5, 1998, sale finalized December 1, 1998-Ship sold for US$210,000 with term providing buyer would use best efforts to move Cali within 45 days after closing of sale-Soon after sale completed, plaintiff successful in motion for payment of outstanding moorage (C$116,505.60) from July 22, 1998 to December 16, 1998-As to plaintiff's motion: orders herein, as they stand, allow plaintiff to claim post-July 22, 1998 moorage for indefinite period of time, with high priority-Therefore, plaintiff must succeed in motion for yet another sum of outstanding moorage, running from December 17, 1998 to February 28, 1999-As to ITFC's motion, variance of existing order under r. 399(2) must meet threefold test: new matter arising or discovered subsequent to order; moving party must establish it could not with reasonable diligence have discovered new matter sooner; if new matter had initially been brought forward, would probably have resulted in different original order-Motion under r. 399 exception to doctrine of res judicata-Fact buyer of ship unable to move it off berth as quickly as everyone expected, by reason of lack of both deletion certificate and alternate berth, resulting in unexpectedly lengthy delay, new matter-Considering all circumstances, ITFC moved with reasonable diligence herein-Finally, knowledge of new matter at time of initial sale order would certainly probably have made difference-Yet there must be some equitable tempering of outcome for, while ITFC watched shrinking sale proceeds fund, plaintiff continued, at time motion brought, to be deprived of use of berth for other purposes-No order or document herein bestowing any benefit of pre-paid moorage on buyer after it became owner of Cali-Moreover, no bar to plaintiff pursuing buyer in personam or Cali in rem for moorage after buyer became owner of Cali-Plaintiff therefore entitled to 28 days of further secured moorage-Order varied limiting preferred recovery of plaintiff to moorage provided up until March 28, 1999-Federal Court Rules, 1998, SOR/98-106, r. 399(2).