101252 P.E.I. Inc. v. Brekka, (2013) 334 N.S.R.(2d) 138 (SC)

• Judge: Wood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 11, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 334 N.S.R.(2d) 138 (SC);2013 NSSC 289

101252 P.E.I v. Brekka (2013), 334 N.S.R.(2d) 138 (SC);

    1059 A.P.R. 138

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. SE.049

101252 P.E.I. Inc., a body corporate (plaintiff) v. Betty Ann Brekka (defendant)

(Hfx. No. 413840; 413842; 2013 NSSC 289)

Indexed As: 101252 P.E.I. Inc. v. Brekka

Nova Scotia Supreme Court

Wood, J.

September 19, 2013.

Summary:

Foreclosure proceedings with respect to two properties owned by Brekka resulted in sales of the properties to the plaintiff. Brekka claimed that she had reached an oral agreement with the president of the plaintiff on the day of the foreclosure sales that would have entitled her to additional time to come up with financing to save the properties. Brekka moved for an order giving effect to the alleged settlement agreement.

The Nova Scotia Supreme Court denied the motion.

Contracts - Topic 7952

Statute of Frauds - General - When applicable - [See Sale of Land - Topic 1351 ].

Contracts - Topic 8005

Statute of Frauds - Part performance - General - [See Sale of Land - Topic 1351 ].

Practice - Topic 9852

Settlements - What constitutes a settlement - Foreclosure proceedings with respect to two properties owned by Brekka resulted in sales of the properties to the plaintiff - Brekka claimed that she had reached an oral agreement with the president of the plaintiff on the day of the foreclosure sales that would have entitled her to additional time to come up with financing to save the properties - Brekka moved for an order giving effect to the alleged settlement agreement - The Nova Scotia Supreme Court denied the motion on the basis that, under s. 7(d) of the Statute of Frauds, Brekka was not entitled to enforce the alleged agreement - However, in any event, the court was not satisfied that an agreement existed - At most, there was a discussion about the framework of an arrangement that might have been acceptable - A number of details remained to be resolved before the plaintiff's president was prepared to commit to the arrangement - See paragraphs 34 to 53.

Sale of Land - Topic 1325

The contract - Necessity for writing - General - Statute of Frauds - Circumstances within statute - [See Sale of Land - Topic 1351 ].

Sale of Land - Topic 1351

The contract - Necessity for writing - General - Part performance in lieu of writing - What constitutes part performance - Foreclosure proceedings with respect to two properties owned by Brekka resulted in sales of the properties to the plaintiff - Brekka claimed that she had reached an oral agreement with the president of the plaintiff on the day of the foreclosure sales that would have entitled her to additional time to come up with financing to save the properties - Brekka moved for an order giving effect to the alleged settlement agreement - The Nova Scotia Supreme Court denied the motion - As this was a request to enforce an agreement for the sale of land, s. 7(d) of the Statute of Frauds applied - The court rejected Brekka's assertion that there had been sufficient acts of part performance to take the agreement outside of the Statute of Frauds - The conduct in question had to unequivocally refer to the particular agreement alleged - The two events relied on by Brekka as evidence of part performance were the conveyances of the properties by the sheriff to the plaintiff and Brekka's efforts to secure financing to pay the amounts that she said had been promised to the plaintiff's president - These events did not prove part performance - Brekka was not entitled to enforce the alleged agreement - See paragraphs 17 to 33.

Cases Noticed:

Steadman v Steadman, [1976] A.C. 536 (H.L.), refd to. [para. 21].

Self v. Brignoli (2012), 314 N.S.R.(2d) 140; 994 A.P.R. 140; 2012 NSSC 81, agreed with [para. 23].

Statutes Noticed:

Statute of Frauds, R.S.N.S. 1989, c. 442, sect. 7(d) [para. 17].

Authors and Works Noticed:

McCamus, John D., The Law of Contracts (2nd Ed. 2012), pp. 177, 189 [para. 20].

Counsel:

Ezra B. van Gelder, for the plaintiff;

Richard A. Bureau and Sean Kaulback (articled clerk), for the defendant.

This motion was heard at Halifax, N.S., on September 11, 2013, by Wood, J., of the Nova Scotia Supreme Court, who delivered the following written decision on September 19, 2013.