610687 NB Inc. v. Lutheran Church of Canada et al., 2015 NBQB 140

Judge:Rideout, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:June 22, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 140;(2015), 437 N.B.R.(2d) 374 (TD)
 
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610687 NB v. Lutheran Church (2015), 437 N.B.R.(2d) 374 (TD);

    437 R.N.-B.(2e) 374; 1140 A.P.R. 374

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JL.012

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JL.012

610687 NB Inc. d.b.a Kingswood Academy (plaintiff/respondent) v. Lutheran Church of Canada, East District (A Regional Division of the Ontario District of the Lutheran Church - Missouri Synod) (defendant/moving party)

(MC-1156-12; 2015 NBQB 140; 2015 NBBR 140)

Indexed As: 610687 NB Inc. v. Lutheran Church of Canada et al.

Répertorié: 610687 NB Inc. v. Lutheran Church of Canada et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

July 3, 2015.

Summary:

Résumé:

The plaintiff sued the defendant seeking: a. specific performance of an agreement in the form of a declaration of its interest in a property; b. alternatively, a declaration of its interest in the property based on the doctrine of part performance; c. in the further alternative, quantum meruit compensation for the defendant's unjust enrichment; d. an interlocutory injunction prohibiting the sale of the land; e. a Certificate of Pending Litigation (CPL) against the land; f. interest; g. costs; and h. such other relief as the court deemed just. The defendant applied for summary judgment.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the defendant's request for a dismissal of the plaintiff's claim. The court allowed its alternative request that the defendant had no interest or title in the property in question and dismissed that portion of the claim. No transfer of an interest in the lands and buildings in question occurred. It followed that the CPL should be removed from Land Titles and the claim for an injunction should be dismissed. The matter should proceed to trial with respect to the quantum meruit claim.

Contracts - Topic 1503

Formation of contract - Consensus or agreement - What constitutes a consensus necessary for a binding contract - [See Sale of Land - Topic 1353 ].

Contracts - Topic 7952

Statute of Frauds - General - When applicable - [See Sale of Land - Topic 1353 ].

Contracts - Topic 8005

Statute of Frauds - Part performance - General - [See Sale of Land - Topic 1353 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Sale of Land - Topic 1353 ].

Practice - Topic 5717

Judgments and orders - Summary judgments - For part of claim - [See Sale of Land - Topic 1353 ].

Sale of Land - Topic 1325

The contract - Necessity for writing - General - Statute of Frauds - Circumstances within Statute - [See Sale of Land - Topic 1353 ].

Sale of Land - Topic 1353

The contract - Necessity for writing - Part performance in lieu of writing - Application of doctrine - The plaintiff sued the defendant seeking, inter alia: a. specific performance of an agreement in the form of a declaration of its interest in a property; b. alternatively, a declaration of its interest in the property based on the doctrine of part performance; c. in the further alternative, quantum meruit compensation for the defendant's unjust enrichment; d. an interlocutory injunction prohibiting the sale of the land; and e. a Certificate of Pending Litigation (CPL) against the land - A draft lease was in evidence that referred to the plaintiff acquiring an equity interest in the property through lease payments - The defendant applied for summary judgment - The New Brunswick Court of Queen's Bench, Trial Division, held that there was no consensus ad idem between the parties and their associated corporations - The exchange of emails and documents clearly indicated that many items remained outstanding and required further discussion; therefore there was no agreement - In the lease document there were many notations of "[NTD]" and then questions or issues to be discussed - In addition to there being no signed documentation, there was never a meeting of the minds as to the totality of the agreement itself - Where there was no signed agreement nor consensus ad idem, the Statute of Frauds (subsequently repealed) applied - The court found that there was no memorandum or note in writing signed by the defendant respecting the lands and building indicating that an interest in lands had been assigned, granted or surrendered - The court also rejected the plaintiff's argument that there was sufficient part performance to support their position that an interest in land was conveyed - The plaintiff entered into occupation, but there was little evidence that the required lease payments to attract the equity interest were made - It was acknowledged that invoices were not sent to the plaintiff, but that only showed that there was not full compliance or agreement with the draft lease - No transfer of an interest in the lands and buildings occurred - Therefore, the court granted partial summary judgment determining that the plaintiff had no title or interest in the property - It followed that the CPL should be removed from Land Titles and the claim for an injunction dismissed - See paragraphs 1 to 30.

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 22].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 2014 SCC 7, refd to. [para. 23].

Counsel:

Avocats:

G. Robert Basque, Q.C., for the plaintiff;

Robert M. Dysart and Josie H. Marks, for the defendant.

This motion was heard on June 22, 2015, by Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on July 3, 2015.

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