Fairways Project Ltd. v. Melander, (2011) 520 A.R. 217 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 11, 2011
• Citations: (2011), 520 A.R. 217 (QB);2011 ABQB 6

Fairways Project Ltd. v. Melander (2011), 520 A.R. 217 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. FE.118

Fairways Project Ltd. (plaintiff/applicant) v. Clarence Sigurd Melander (defendant/respondent)

(0012 00705; 2011 ABQB 6)

Indexed As: Fairways Project Ltd. v. Melander

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Shelley, J.

February 11, 2011.

Summary:

The plaintiff sued the defendant for breach of a contract for the sale of land. It sought specific performance. The defendant transferred title to the land to himself and son as joint tenants. The defendant died. The defendant's estate sought summary dismissal of the plaintiff's specific performance claim. The plaintiff applied for an order requiring the estate to post security for costs, adding the defendant's son as a defendant, and directing that the action be entered for trial.

The Alberta Court of Queen's Bench dismissed the application for summary judgment, ordered the defendant to post security for costs, and added the son as a defendant. The application for an order directing that the action be entered for trial was dismissed as premature.

Contracts - Topic 4110

Remedies for breach - Specific performance - Sale or lease of land - [See Sale of Land - Topic 8551 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Sale of Land - Topic 8551 ].

Practice - Topic 8109

Costs - Security for costs - General principles - Application by plaintiff where defendant out of jurisdiction - The plaintiff developer sued the defendant for specific performance of a contract of sale for land - The defendant transferred title to the land to himself and son as joint tenants - The defendant died - The plaintiff applied for an order requiring the estate to post security for costs - The defendant was a non-resident of Canada, his executor (son) was also a non-resident and it appeared that the land was the estate's sole Canadian asset - The estate argued that the market value of the land would be more than sufficient to cover any cost award - Further, it argued that the plaintiff had delayed its application for security for costs, causing the estate to be lulled into a false belief that the defendant could proceed without being called upon to provide security - The Alberta Court of Queen's Bench ordered the defendant to post security for costs of $15,000 - Although the plaintiff did not seek security for costs for a considerable period of time, the defendant estate could not be surprised that the plaintiff was seeking it at this juncture - The estate had no assets in Alberta other than the land and its value was not sufficient to satisfy either a damages award (if the plaintiff obtained one at trial) or costs (if the plaintiff obtained an order for specific performance) - See paragraphs 29 to 40.

Sale of Land - Topic 8551

Remedies of purchaser - Specific performance - When available - The plaintiff developer sued the defendant for specific performance of a contract of sale for land - The defendant died - The defendant's estate sought summary dismissal of the plaintiff's specific performance claim - It argued that the plaintiff was seeking to purchase the land for the purposes of investment and/or development and was not interested in the land due to any inherent uniqueness, and that any additional value in the land attributable to its amenities and location could be compensated by way of damages - The plaintiff argued that the land was unique and no suitable alternative lands were available - The Alberta Court of Queen's Bench dismissed the summary judgment application - There was significant disagreement regarding the availability of comparable substitute lands in the area - The importance to the plaintiff of using contractors and workers in close proximity to both its business location and the land strengthened the argument that the land was unique - The issue of uniqueness was a genuine issue to be tried - See paragraphs 12 to 28.

Cases Noticed:

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379, refd to. [para. 4].

410675 Alberta Ltd. v. Trail South Developments Inc. et al. (2001), 293 A.R. 181; 257 W.A.C. 181; 2001 ABCA 274, refd to. [para. 4].

1244034 Alberta Ltd. v. Walton International Group Inc. et al. (2007), 422 A.R. 189; 415 W.A.C. 189; 2007 ABCA 372, refd to. [para. 4].

365733 Alberta Ltd. et al. v. Tibero et al. (2008), 440 A.R. 177; 438 W.A.C. 177; 2008 ABCA 341, refd to. [para. 4].

United Paint and Coating Canada Ltd., Archibald and Sheard v. St. Laurent, St. Laurent and Tower Paint and Laboratories Ltd. (1980), 27 A.R. 217; 13 Alta. L.R.(2d) 134 (Q.B. Master), refd to. [para. 6].

Strategy Summit Ltd. v. Remington Development Corp. (2009), 446 A.R. 312; 442 W.A.C. 312; 2009 ABCA 30, refd to. [para. 10].

Covlin v. Minhas et al. (2009), 468 A.R. 301; 2009 ABQB 42, refd to. [para. 10].

Murphy Oil Co. et al. v. Predator Corp. et al. (2006), 384 A.R. 251; 367 W.A.C. 251; 2006 ABCA 69, refd to. [para. 12].

McNabb v. Smith (1981), 30 B.C.L.R. 37 (S.C.), refd to. [para. 13].

Bowlen Holdings Ltd. v. Bradburn (R.A.) Enterprises Inc. (1991), 126 A.R. 22 (Q.B.), refd to. [para. 20].

Nisheu Enterprises Ltd. v. Friendly Auto Body & Repair Ltd. et al., [2010] A.R. Uned. 125; 2010 ABQB 8, refd to. [para. 23].

Amnor Ltd. v. 923862 Alta. Ltd. et al. (2010), 500 A.R. 301; 29 Alta.L.R.(5th) 57; 2010 ABQB 236, refd to. [para. 24].

1244034 Alberta Ltd. v. Walton International Group Inc., [2007] A.R. Uned. 201; 2007 ABQB 197, refd to. [para. 31].

Bre-X Minerals Ltd. (Bankrupt) v. Walsh (2002), 333 A.R. 223 (Q.B. Master), refd to. [para. 32].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2003), 338 A.R. 124; 2003 ABQB 376, refd to. [para. 33].

Singh v. Dura (1988), 86 A.R. 268; 59 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 33].

Crothers v. Simpson Sears Ltd. - see Singh v. Dura.

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (Looseleaf), generally [para. 17].

Counsel:

M.D. Klause, Q.C. (McDonald Street Law Office), for the plaintiff;

G.A. Yake (Warren Sinclair LLP), for the defendant.