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T-323-82
Ocean Cape Compagnia Naviera S.A. (Plaintiff) v.
Noranda Sales Corporation Ltd., Noranda Sales Corporation of Canada Ltd. and Balance of Sub- Freights Owing on a Cargo of Fluorspar Carried From Tampico to Dordrecht on Board the Ioannis Under Bill of Lading Dated August 26, 1981 (Defendants)
Trial Division, Walsh J.—Montreal, April 19; Ottawa, April 23, 1982.
Practice — Defendants move for service ex juris on trustees in bankruptcy of Clover Trading Company Inc. of motion for order of interpleader to substitute Clover Trading Company Inc. for defendants — Defendants do not dispute amount due for balance of freight resulting from sub-charter by them from Clover Trading Company Inc. which had time-chartered vessel from plaintiff — Possible dispute between Clover Trading Company Inc. and plaintiff as to which should receive payment but former has neither sought to intervene pursuant to Rule 1010 nor consented to payment to plaintiff — Rule 1716(2)(6) permits Court to order person whose presence before Court is necessary to ensure that all matters in dispute may be com pletely and effectually adjudicated upon to be added as party — No clear indication that Clover Trading Company Inc.'s presence necessary, or that it is disputing plaintiff's right to claim freight from defendants — No provision in Rules for introducing new defendant against wishes of plaintiff and without consent of new defendant — Motion for service ex furls allowed — Federal Court Rules 1010, 1716(2)(b).
MOTION. COUNSEL:
T. Bishop for plaintiff.
G. P. Barry for defendants.
SOLICITORS:
Brisset, Bishop, Davidson & Davis, Montreal, for plaintiff.
McMaster, Meighen, Montreal, for defend ants.
The following are the reasons for order ren dered in English by
WALSH J.: The present motion by defendants is for service ex juris on Sven Rosenmeyer Paulsen, Henrik Andersen and Folmer Teilmann in their capacity as trustees of Clover Trading Company Inc. in bankruptcy at the offices of Reumert & Partners, 26 Bredgade, Denmark 1260, Copenha- gen or any other place in Denmark at which any of them may be found, or alternatively that accept ance of such service duly authenticated by the Canadian consular authorities avail in lieu of such service, of a motion for an order of interpleader which would substitute the said Clover Trading Company Inc. in bankruptcy for defendants.
The situation arises out of a claim by plaintiff for the balance of freight owing by defendants resulting from a sub-charter by them from the said Clover Trading Company Inc. which had time- chartered the vessel from plaintiff. Defendants do not dispute the amount due and in fact in the motion which they seek leave to serve ex juris seek permission to tender the amount of $30,163.14 (the Canadian dollar equivalent of $25,347.18 U.S.) into Court. What they seek to avoid is being placed in double jeopardy and after having paid the amount, which they admit is due, to plaintiff then having to face a claim for it from the said Clover Trading Company Inc., there being a pos sible dispute between plaintiff and that company as to which should receive the said payment.
The problem arises because there is no provision in the Rules of this Court for such a motion, which would have the effect of introducing a new defend ant, Clover Trading Company Inc. in bankruptcy, against the wishes of plaintiff in place of defend ants whom plaintiff has chosen to sue, and of introducing said Clover Trading Company Inc. as a defendant without any consent by it to this. Defendants even seek that plaintiff introduce an amended paragraph to its statement of claim as a result of this change of defendants, although they
also seek an order that no payment be made out of Court of the monies they propose to deposit until the Court has determined the issue between plain tiff and said Clover Trading Company Inc.
It appears doubtful whether such a motion could be granted but this is not a matter for determina tion in the present motion for service ex juris, the real issue being whether permission should be given for service of such a motion which is not provided for in the Rules of this Court and may not succeed, however useful the end sought to be attained may be.
Rule 1010 provides for the intervention in Admiralty matters of a person having an interest in the property or money but who is not a defend ant. In the present case, Clover Trading Company Inc. in bankruptcy not only has not sought to intervene, but has not replied to a letter of Febru- ary 10, 1982 from plaintiff inviting them to inter vene or alternatively to consent to the money due being paid by defendants to plaintiff so that the action may be discontinued, nor to a telex of March 17, 1982 requiring them to intervene within 7 days if they wish to protect their interests.
Defendants do not wish to take the chance, however, of assuming that said Clover Trading Company Inc. will make no claim against them, and paying the amount due to plaintiff. The ques tion to be argued on the motion will therefore be whether a party can be forced to become a party to an action against its wishes.
Rule 1716(2)(b) does permit the Court to order a person whose presence before the Court is neces sary to ensure that all matters in dispute in the action may be completely and effectually adjudicated upon to be added as a party, but this would not seem to go so far as to permit him to be substituted for another party, and moreover there appears to be no clear indication that Clover Trad ing Company Inc.'s presence is necessary, or that they are disputing plaintiff's right to claim the freight from defendants. These are, however, mat-
ters which would have to be decided on the hearing of the motion.
Defendants hope that the mere service of the motion on the trustees in bankruptcy of the said Clover Trading Company Inc. will have the effect of making them take a positive decision as to whether they have any claim for the money to be deposited or consent to its being paid to plaintiff, thereby terminating the proceedings, a useful objective.
Under the unusual circumstances, I will consent to the order for service ex juris of the motion; costs to be in the event of same.
ORDER
Defendants may serve ex juris on Sven Rosen- meyer Paulsen, Henrik Andersen and Folmer Teil- mann in their capacity as trustees in bankruptcy of Clover Trading Company Inc. at the offices of Reumert & Partners, 26 Bredgade, Denmark 1260, Copenhagen or such other place in Denmark where any of them may be found, or if service is accepted duly authenticated by the Canadian con sular authorities to avail in lieu of service, of the notice of motion for an order of interpleader and accompanying affidavit annexed to the present motion, the serving officer to insert a date for presentation of the said motion on the first regular motion day in Montreal not less than 28 days nor more than 35 days from the date of said service; costs in the event.
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