Dupere v. Evans, (2005) 261 N.S.R.(2d) 1 (SmCl)

Court:Small Claims Court of Nova Scotia
Case Date:March 07, 2005
Jurisdiction:Nova Scotia
Citations:(2005), 261 N.S.R.(2d) 1 (SmCl);2005 NSSM 39
 
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Dupere v. Evans (2005), 261 N.S.R.(2d) 1 (SmCl);

      835 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JA.023

Arthur and Yvelle Dupere (claimant) v. Gregory and Joey Evans (defendant)

(SCCH 231266; 2005 NSSM 39)

Indexed As: Dupere v. Evans

Nova Scotia Small Claims Court

Parker, Adjudicator

March 7, 2005.

Summary:

Prospective purchasers of a house commenced a small claims action against the vendors for the return of a deposit. They alleged, inter alia, fraudulent and negligent misrepresentation.

The Nova Scotia Small Claims Court dismissed the claim.

Editor's Note: the prospective purchasers, in a decision reported at 242 N.S.R.(2d) 52; 770 A.P.R. 52, were successful on appeal in obtaining the return of their deposit.

Sale of Land - Topic 3753

Contract - Discharge, rescission or annulment - Grounds - Misrepresentation - Purchasers agreed to purchase a house - They were aware that there had been an oil tank spill on the property and received assurances from an engineering firm hired by the vendors that the property was safe to inhabit - The purchasers later refused to close the sale on the basis, inter alia, that the property was fundamentally different from that which they agreed to purchase - There were now four government test wells on the property and hydrocarbons had been found in the groundwater requiring further tests - They commenced a small claims action against the vendors for the return of their $5,000 deposit - They alleged that the defendants had made a fraudulent misrepresentation respecting the number of oil spills or leaks on the property - They alleged that the defendants had told them there had been one incident but had told others there had been two - The Nova Scotia Small Claims Court dismissed the action - There was no fraudulent misrepresentation as the defendants had not been dishonest - Alternatively, there was no negligent misrepresentation - The defendants did not really know whether there had been a second spill - The purchasers had not proved that there was a second oil spill - Therefore, the representation that there was one spill was true, accurate and not false - See paragraphs 7 to 28.

Sale of Land - Topic 3755

Contract - Discharge, rescission or annulment - Grounds - Fraudulent misrepresentation - [See Sale of Land - Topic 3753 ].

Cases Noticed:

Thompson et al. v. Schofield et al. (2005), 230 N.S.R.(2d) 217; 729 A.P.R. 217 (S.C.), refd to. [para. 7].

Grant v. March (1995), 138 N.S.R.(2d) 385; 394 A.P.R. 385 (S.C.), refd to. [para. 9].

Derry v. Peek (1889), 14 App. Cas. 337, refd to. [para. 9].

Authors and Works Noticed:

DiCastri, Victor, The Law of Vendor and Purchaser (3rd Ed. 1988), generally [para. 9].

Counsel:

Gary J. Withrow, for the claimants;

Jason McQuaid, for the defendants.

This action was heard on January 13, February 17 and 22, 2005, before Parker, Adjudicator, of the Nova Scotia Small Claims Court, who released the following decision on March 7, 2005.

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