Abraham v. Wingate Properties Ltd., (1985) 36 Man.R.(2d) 264 (CA)

• Judge: Monnin, C.J.M., Hall and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 27, 1985
• Jurisdiction: Manitoba
• Citations: (1985), 36 Man.R.(2d) 264 (CA);1985 CanLII 181 (MB CA);[1986] 1 WWR 568;[1985] MJ No 156 (QL);36 Man R (2d) 264

Abraham v. Wingate Prop. Ltd. (1985), 36 Man.R.(2d) 264 (CA)

MLB headnote and full text

Abraham v. Wingate Properties Limited

(Suit No. 83/85)

Indexed As: Abraham v. Wingate Properties Ltd.

Manitoba Court of Appeal

Monnin, C.J.M., Hall and Twaddle, JJ.A.

October 30, 1985.

Summary:

The plaintiff purchaser of an apartment building sought rescission of the agreement of purchase and sale because of alleged misrepresentations by the vendor which induced her to purchase the property. In the alternative, the purchaser claimed damages for breach of contract.

The Manitoba Court of Queen's Bench, in a decision reported in 30 Man.R.(2d) 309, allowed the purchaser's action in part. The court refused to order rescission, but awarded the purchaser limited damages. The purchaser appealed respecting the failure to order rescission or, alternatively, for more substantial damages.

The Manitoba Court of Appeal allowed the appeal in part. The Court of Appeal affirmed that rescission was unavailable, but awarded the purchaser increased damages.

Contracts - Topic 4181

Remedies for breach - Rescission - General - The Manitoba Court of Appeal stated that rescission is properly not a remedy available for breach of contract - The rescission arising from a breach of contract is actually a discharge of future obligations - See paragraph 6.

Damages - Topic 803

Assessment - Where amount of loss difficult to estimate or determine - The Manitoba Court of Appeal held that difficulty in fixing an amount of damages should not deter the court from doing so - The court held that it must use some logical basis for estimating the damages suffered, but better that the damaged party receive a reasonable, if not mathematically measurable, amount than no compensation at all - See paragraphs 12 to 13.

Practice - Topic 7028

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Unfounded, excessive or unnecessary claims - A partially successful plaintiff appealed, persisting in an allegation of fraud which was totally unfounded - The Manitoba Court of Appeal allowed the appeal in part, but ordered the plaintiff to pay the defendant's costs of the appeal - See paragraph 19.

Sale of Land - Topic 863

The contract - Consideration - Necessity of - The Manitoba Court of Appeal affirmed that an undertaking to repair given by a vendor of land after the offer to purchase was accepted was not supported by consideration and therefore was not binding on the vendor - See paragraph 16.

Sale of Land - Topic 3681

The contract - Rescission - Bars - General - A purchaser of land sought rescission of the agreement of sale for an alleged misrepresentation by the vendor - The Manitoba Court of Appeal affirmed that rescission was unavailable where (1) the representation was not made in the course of negotiations but first appeared as a term of the written contract (2) there were no further obligations to be performed under the agreement - See paragraphs 5 to 10.

Sale of Land - Topic 8758

Remedies of purchaser - Damages - Negligent misrepresentation - The vendor of an apartment building represented that the property complied with all applicable bylaws, when actually several units breached City of Winnipeg Bylaw 763/74, respecting minimum standards of maintenance and occupancy - The Manitoba Court of Appeal held that the purchaser's damages should not be based on the cost of remedying the breach, but rather the difference between the value of the building as warranted and as it was in fact - The court noted that in the agreement for sale the building was valued at $25,000. and awarded the purchaser one-third of this amount - See paragraphs 11 to 15.

Cases Noticed:

Pennsylvania Shipping Co. v. Companie Nationale de Navigation, [1936] 2 All E.R. 1167, not appld. [para. 5].

Zien v. Field (1963), 41 D.L.R.(2d) 394, not appld. [para. 5].

Heyman v. Darwins Ltd., [1942] A.C. 356, refd to. [para. 6].

Johnson v. Agnew, [1980] A.C. 367, refd to. [para. 6].

Radican v. Nesbitt, [1924] S.C.R. 135, refd to. [para. 9].

Kennedy v. Panama Etc Royal Mail Co., L.R. 2 Q.B. 580, refd to. [para. 9].

Chaplin v. Hicks, [1911] 2 K.B. 786, refd to. [para. 12].

Wood v. Grand Valley R. Co. (1913), 16 D.L.R. 361 (Ont. C.A.), refd to. [para. 12].

Wood v. Grand Valley R. Co. (1915), 51 S.C.R. 283 (S.C.C.), refd to. [para. 12].

Penvidic Contracting Co. v. Int'l Nickel Co. of Canada (1975), 4 N.R. 1; 53 D.L.R.(3d) 748 (S.C.C.), refd to. [para. 12].

Counsel:

Sidney Green, Q.C., for the appellant;

Kenneth Filkow, Q.C., for the respondent.

This appeal was heard before Monnin, C.J.M., Hall and Twaddle, JJ.A., of the Manitoba Court of Appeal on September 27, 1985. The decision of the Court of Appeal was delivered by Twaddle, J.A., on October 30, 1985.