Key Facts:
- Cedar Peaks initiated foreclosure proceedings after 216 defaulted on mortgages for two Edmonton properties.
- Encore, the builder, registered unpaid vendor’s lien caveats on these properties before Cedar Peaks’ mortgage, which raised a dispute over the order of priority.
Legal Issue:
Whether Cedar Peaks, as a third-party beneficiary of a contract between Encore and 216, is entitled to have Encore’s lien caveats postponed to Cedar Peaks’ mortgages.
Court's Findings:
- Third-Party Rights: Cedar Peaks, though not a party to the Purchase Agreement between 216 and Encore, can benefit from its clause that required the caveats to be postponed in favor of new mortgages.
- Conditions Not Met: Encore argued that its obligation to postpone was conditional on 216 meeting certain financial obligations, which were unmet.
- Waiver: The court found that by accepting the mortgage funds, Encore waived its right to enforce those conditions.
- Equitable Relief: The court concluded that Encore must postpone its caveats in favor of Cedar Peaks' mortgages, granting Cedar Peaks priority in the foreclosure proceedings.
Conclusion:
Cedar Peaks’ application to have Encore’s caveats postponed was granted, giving it the right to proceeds from the sale of the properties ahead of Encore’s claim.
No monetary award was specified.
