Arero Corp. v. Erb (G & D) Holdings Ltd. et al., (2008) 224 Man.R.(2d) 178 (QB)

• Judge: Keyser, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 06, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 224 Man.R.(2d) 178 (QB);2008 MBQB 40

Arero Corp. v. Erb Holdings (2008), 224 Man.R.(2d) 178 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. FE.023

Arero Corporation (plaintiff) v. G & D Erb Holdings Ltd., D & M Erb Holdings Ltd. and F & L Erb Holdings Ltd. (defendants)

(CI 07-01-52108; 2008 MBQB 40)

Indexed As: Arero Corp. v. Erb (G & D) Holdings Ltd. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Keyser, J.

February 6, 2008.

Summary:

Arero Corp. and the defendants entered into an agreement for the sale of land to Arero. After problems arose regarding subdivision approval, the defendants refused to close the sale. Arero obtained a pending litigation order. The defendants appealed.

The Manitoba Court of Queen's Bench dismissed the appeal.

Real Property - Topic 7855

Title - Registration of instruments, etc. - Lis pendens or certificate of pending litigation - Vacating of - Grounds - Arero Corp.'s offer to purchase property from the defendants was accepted - The parties entered into an agreement - A condition provided that the purchase was conditional for 180 days from acceptance to allow Arero to obtain subdivision approval - That condition was subsequently waived by Arero - The closing date was April 16, 2007 - Problems arose with the proposed subdivision - Arero wanted to postpone closing to apply for a different subdivision - Subdivision of some type was required before title could be legally transferred to Arero - A new closing date was discussed - On April 13, 2007, Arero confirmed that it had a fully executed mortgage commitment - The defendants expressed concerns regarding the mortgage - On April 17, 2007, Arero provided a mortgage commitment that had been amended to address the defendants' concerns - The defendants refused to close - Arero was granted a pending litigation order - The defendants appealed, asserting that Arero's failure to obtain subdivision approval was fatal to its case - The Manitoba Court of Queen's Bench dismissed the appeal - The agreement did not require subdivision approval - The condition that referred to subdivision approval had been waived - The agreement contemplated a mortgage - Arero had confirmed mortgage availability - There was at least a triable issue - The defendants had not proven that Arero's action had to fail - The pending litigation order was not discharged - See paragraphs 16 to 30.

Cases Noticed:

Mellco Developments Ltd. et al. v. Portage la Prairie (City) et al. (2002), 166 Man.R.(2d) 285; 278 W.A.C. 285; 2002 MBCA 125, refd to. [para. 17].

Faskerti et al. v. Mydaniuk et al., [2003] Man.R.(2d) Uned. 65; 2003 MBQB 154 (Master), refd to. [para. 18].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 19].

Ventura Land Co. v. F & L Erb Holdings Ltd. et al., [2007] Man.R.(2d) Uned. 104; 2007 MBQB 297, dist. [para. 21].

Counsel:

Gregory M. Fleetwood and John B. Martens, for the plaintiff;

Dave G. Hill, for the defendants.

This appeal was heard by Keyser, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 6, 2008.