Allain v. Nesbitt et al., (1999) 218 N.B.R.(2d) 4 (TD)

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: July 27, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 218 N.B.R.(2d) 4 (TD)

Allain v. Nesbitt (1999), 218 N.B.R.(2d) 4 (TD);

    218 R.N.-B.(2e) 4; 558 A.P.R. 4

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.B.R.(2d) TBEd. OC.031

Michael R.J. Allain (plaintiff) v. Roger H. Nesbitt and Amerispec (defendants)

(S/SC/585/98)

Indexed As: Allain v. Nesbitt et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

September 30, 1999.

Summary:

A purchaser of a home claimed damages against, among others, the vendor regarding a wood stove/fireplace insert and cracked clay liner in the chimney. The pur­chaser asserted that the vendor incorrectly stated in the disclosure statement that the wood stove/fireplace insert's installation was ap­proved by local authorities.

The New Brunswick Court of Queen's Bench, Trial Division, held that the vendor made an incorrect statement and was liable for putting the insert installa­tion in a condi­tion where it would be approved by local author­ities.

Sale of Land - Topic 807

The contract - General - Property condition disclosure statement - A purchaser of a home claimed damages against, among others, the vendor, asserting that the ven­dor incorrectly stated in the disclosure statement that the wood stove/fireplace insert's installation was approved by local authorities - The vender asserted that a previous owner installed the wood stove and that he relied upon a safety survey-recommendation report prepared by his insurance agent - The New Brunswick Court of Queen's Bench, Trial Division, held that the vendor made an incorrect statement and was liable for putting the insert installation in a condition where it would be approved by local authorities - The insurance agent and its safety special­ist should not be considered "local author­ities" for the pur­poses of the relevant question in the dis­closure statement.

Sale of Land - Topic 807

The contract - General - Property condition disclosure statement - A purchaser of a home claimed damages against, among others, the vendor, for cracks in the chim­ney's clay liner - There was nothing in the disclosure statement regarding the chimney not meeting code requirements - The ven­dor answered "no" to the question "Where necessary, were all municipal permits and inspections obtained" - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the vendor was not liable for the cracks in the chimney - An inspec­tion of the chimney by a compe­tent person prior to the closing would have revealed the deficiencies detected subse­quent to closing.

Sale of Land - Topic 1941

The contract - Duties of buyer - General - [See second Sale of Land - Topic 807 ].

Words and Phrases

Local authority - The New Brunswick Court of Queen's Bench, Trial Division, discussed the meaning of the phrase "local authority" - See paragraphs 11 to 19 and 26.

Cases Noticed:

Spencer et al. v. Villarroel et al. (1997), 123 N.B.R.(2d) 44; 310 A.P.R. 44 (T.D.), refd to. [para. 22].

Thomas and Thomas v. Whitehouse (1979), 24 N.B.R.(2d) 485; 48 A.P.R. 485 (C.A.), refd to. [para. 22].

Recha and Klein v. Yeamans and Gere (1992), 126 N.B.R.(2d) 136; 317 A.P.R. 136 (T.D.), refd to. [para. 23].

Authors and Works Noticed:

Dictionary of Canadian Law [para. 12].

Counsel:

Michael R.J. Allain, on his own behalf;

Roger H. Nesbitt, on his own behalf;

Michael Legere, on behalf of Amerispec.

This matter was heard on July 27, 1999, by Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on September 30, 1999.