2475813 Nova Scotia Ltd. v. Lundrigan, 2003 NSSC 48

• Judge: Edwards, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 13, 2003
• Jurisdiction: Nova Scotia
• Citations: 2003 NSSC 48;(2003), 213 N.S.R.(2d) 53 (SC)

2475813 N.S. Ltd. v. Lundrigan (2003), 213 N.S.R.(2d) 53 (SC);

 667 A.P.R. 53

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. MR.026

2475813 Nova Scotia Limited (plaintiff) v. Beverley Lundrigan (defendant)

(S.H. 154235C; 2003 NSSC 48)

Indexed As: 2475813 Nova Scotia Ltd. v. Lundrigan

Nova Scotia Supreme Court

Edwards, J.

February 28, 2003.

Summary:

A vendor of a condominium unit refused to close the transaction pursuant to a duly executed agreement of purchase and sale. She claimed that she had not understood that, by permitting the purchaser to assume her mortgage, she would still be bound by the mortgage covenants. The purchaser sued for specific performance of the agreement.

The Nova Scotia Supreme Court allowed the purchaser's action and granted specific performance.

Barristers and Solicitors - Topic 1553

Relationship with client - Duty to client - General - Duty to review documents with client - A purchaser drafted an agreement of purchase and sale related to the vendor's condominium unit - Prior to executing the agreement, the vendor had retained counsel who had received a copy of the agreement - The vendor subsequently refused to close the transaction, claiming that she had not understood the implications of a mortgage assumption agreement - The Nova Scotia Supreme Court stated that counsel could not be faulted - He was presented with a completed agreement and was not aware that the vendor had doubts about the meaning of the mortgage assumption - The court stated that "It is expecting too much to require that in every case a lawyer should call his client's attention to the assumption clause and probe the clients' understanding of it. If [the lawyer] had negotiated the terms for [the vendor], then he would be held to account. But that is not what happened." - See paragraph 18.

Real Property - Topic 8820

Condominiums - Purchase and sale agreements - Specific performance - A purchaser offered to purchase the vendor's condominium unit - The purchaser intended to convert the building into a long term care home and had acquired approximately 80% of the units - The vendor executed an agreement of purchase and sale - Subsequently, she refused to close the transaction - The purchaser sued for specific performance - The Nova Scotia Supreme Court allowed the purchaser's action, holding that specific performance was the appropriate remedy - See paragraphs 24 to 26.

Sale of Land - Topic 6039

Completion - Conditions precedent and subsequent - Condition respecting assumption of mortgage - A purchaser offered to purchase the vendor's condominium unit - The agreement of purchase and sale drafted by the purchaser provided that the offer was subject to the purchaser assuming the vendor's mortgage - The vendor executed the agreement - The vendor subsequently refused to close the transaction, claiming that she had not understood that, by permitting the purchaser to assume her mortgage, she would still be bound by the mortgage covenants - The Nova Scotia Supreme Court rejected the vendor's claim - The vendor was an educated person - It was her suggestion that the vendor assume her mortgage - Although she had had the agreement for almost a month before executing it, she did not question the meaning of the assumption or raise it with her counsel during that time - The vendor at least knew enough to have asked for clarification - See paragraphs 1 to 23.

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - [See Real Property - Topic 8820 ].

Sale of Land - Topic 8559

Remedies of purchaser - Specific performance - Upon repudiation by seller - [See Real Property - Topic 8820 ].

Cases Noticed:

11 Suntract Holdings Ltd. et al. v. Chassis Service & Hydraulics Ltd. et al. (1997), 49 O.T.C. 112; 36 O.R.(3d) 328 (Gen. Div.), refd to. [para. 25].

Counsel:

Blair H. Mitchell, for the plaintiff;

Robert Ferguson Ford, for the defendant.

This matter was heard in Halifax, Nova Scotia, on February 13, 2003, by Edwards, J., of the Nova Scotia Supreme Court, who delivered the following decision on February 28, 2003.