Desrosiers v. Kotowicz and Kotowicz, (1981) 24 Man.R.(2d) 192 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: March 18, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 24 Man.R.(2d) 192 (CoCt)

Desrosiers v. Kotowicz (1981), 24 Man.R.(2d) 192 (CoCt)

MLB headnote and full text

Desrosiers v. Kotowicz and Kotowicz

Indexed As: Desrosiers v. Kotowicz and Kotowicz

Manitoba County Court

Dureault, C.C.J.

March 18, 1981.

Summary:

A purchaser agreed to purchase land for $15,000.00. He paid the vendor $8,000.00 as a deposit. The purchaser was unable to complete the transaction. The purchaser admitted the vendor's legal entitlement to the deposit but sought the aid of equity to grant relief from forfeiture.

The Manitoba County Court allowed the vendor to keep $1,500.00 and ordered that the balance of the deposit, $6,500.00, be returned to the purchaser.

Sale of Land - Topic 7741

Remedies of vendor - Forfeiture of deposit - A purchaser agreed to purchase land for $15,000.00 - He paid an $8,000.00 deposit - The purchaser was unable to complete the transaction - He sought the aid of equity to grant relief from the forfeiture - The Manitoba County Court ordered that the vendor return $6,500.00 to the purchaser - The court reviewed the principles applicable in granting relief from forfeiture - See paragraphs 14 to 26.

Sale of Land - Topic 7747

Remedies of vendor - Forfeiture of deposit - Whether deposit constituted a genuine pre-estimate of damages - A purchaser agreed to purchase land for $15,000.00 - He paid $8,000.00 on deposit - The purchaser was unable to complete the transaction - The vendor claimed the deposit arguing that it was a pre-estimate of his damages - The Manitoba County Court ordered the vendor to return $6,500.00 to the purchaser - The court concluded that an $8,000.00 payment on a $15,000.00 purchase price was clearly substantial part payment and had no relationship to the vendor's foreseeable damages in the event of repudiation - See paragraphs 12, 21 to 26.

Cases Noticed:

Stockloser v. Johnson, [1954] 1 Q.B. 746; [1954] 1 All E.R. 630 (C.A.), refd to. [para. 16].

Authors and Works Noticed:

Di Castri, Canadian Law of Vendor and Purchaser (2nd Ed.), p. 609 [para. 15].

Honsberger, John D., "Deposits", (1960) Law Society of Upper Canada (Special Lectures), p. 73 [para. 21].

Counsel:

A. Kaufman, for the plaintiff;

Brent Stewart, for the defendant.

This case was heard before Dureault, C.C.J., of the Manitoba County Court, who delivered the following judgment on March 18, 1981: