Hinkson Holdings Ltd. v. Silver Sea Developments Limited Partnership, (2007) 246 B.C.A.C. 37 (CA)

• Judge: Saunders, Lowry and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 19, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 246 B.C.A.C. 37 (CA);2007 BCCA 408

Hinkson Holdings v. Silver Sea Dev. (2007), 246 B.C.A.C. 37 (CA);

    406 W.A.C. 37

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. AU.018

Hinkson Holdings Ltd. (respondent/plaintiff) v. Silver Sea Developments Limited Partnership (appellant/defendant)

(CA034777; 2007 BCCA 408)

Indexed As: Hinkson Holdings Ltd. v. Silver Sea Developments Limited Partnership

British Columbia Court of Appeal

Saunders, Lowry and Frankel, JJ.A.

August 7, 2007.

Summary:

A vendor terminated a purchase and sale agreement for a condominium. The purchaser sought an order declaring the agreement of purchase and sale valid and subsisting, provided the purchaser paid the balance owing on the deposit within 21 days.

The British Columbia Supreme Court, in a decision reported [2007] B.C.T.C. 118, granted the declaration, holding that by accepting a partial payment of a deposit after the payment was due, the vendor had waived its right to subsequently terminate the agreement as it purported to do. The judge held that, upon the whole of the deposit being paid, the vendor was required to complete the transaction. The vendor appealed.

The British Columbia Court of Appeal allowed the appeal.

Real Property - Topic 8818

Condominiums - Purchase and sale agreements - Interpretation - No waiver clauses - A purchaser agreed to purchase a condominium, but paid only one of the three instalment payments on the deposit when due - Ultimately, the purchaser paid the second instalment - However, when the third instalment was not paid, the vendor terminated the agreement - The purchaser sued the vendor seeking a declaration that the agreement for the sale remained valid and subsisting provided the purchaser paid the third instalment within 21 days - The trial judge held that by accepting partial payment of a deposit after the payment was due, the vendor had waived its right to subsequently terminate the agreement as it purported to do - The judge held that, upon the whole of the deposit being paid, the vendor was required to complete the transaction - The vendor appealed - The British Columbia Court of Appeal allowed the appeal - The court held that a "no waiver" clause in the purchase and sale agreement governed the relationship rather than the common law of waiver - The court stated that on the plain meaning of the wording the parties employed, the "no waiver" clause entitled the vendor to cancel the agreement during the continuance of the purchaser's default - Although the provision might seem harsh from a purchaser's perspective, it was not commercially unsustainable and it was what the parties agreed - There was no basis for relief from forfeiture.

Real Property - Topic 8819.2

Condominiums - Purchase and sale agreements - Forfeiture - [See Real Property - Topic 8818 ].

Cases Noticed:

Coal Harbour Properties Partnership v. Liu et al. (2006), 230 B.C.A.C. 78; 380 W.A.C. 78; 56 B.C.L.R.(4th) 230; 2006 BCCA 385, refd to. [para. 33].

Hughes v. Lukuvka (1970), 14 D.L.R.(3d) 110; 75 W.W.R.(N.S.) 464 (B.C.C.A.), refd to. [para. 36].

Counsel:

R.J. Sewell, Q.C., and S.A. Griffin, for the appellant;

G.G. Plottel, for the respondent.

This appeal was heard at Vancouver, British Columbia, on July 19, 2007, before Saunders, Lowry and Frankel, JJ.A., of the British Columbia Court of Appeal. Lowry, J.A., delivered the following judgment for the court on August 7, 2007.