In what circumstances will a bank be able to bring an action to obtain leave under section 38 of the Bankruptcy and Insolvency Act?
British Columbia, Canada
The following excerpt is from Jaston & Co. Ltd. v. McCarthy, 1998 CanLII 6455 (BC CA):
In Banque Royale du Canada v. Dupont (syndic), [1993] A.Q. No. 3 (Q.C.A.), the bank commenced an action to have a transfer of property by a husband to his wife shortly before the husband went into bankruptcy declared invalid. The bank failed to obtain leave under s. 38 prior to commencing its action. The bankrupt applied to dismiss the action on the basis that the failure to obtain leave under s. 38 of the BIA precluded the bank from pursuing its claim. The trial judge stayed the application for dismissal so that it could be tried at the same time as the bank's application for leave under s. 38.
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