Hunchak Estate and Hunchak v. Bandura, (1987) 83 A.R. 262 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 14, 1987
• Citations: (1987), 83 A.R. 262 (QBM)

Hunchak Estate v. Bandura (1987), 83 A.R. 262 (QBM)

MLB headnote and full text

Ilona Swaenoepoel and Linda Hunchak, Executrixes of the Estate of George Hunchak, Deceased, and Julia Hunchak v. John Bandura

(Action No. 8503 22215)

Indexed As: Hunchak Estate and Hunchak v. Bandura

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

July 14, 1987.

Summary:

Vendors agreed to sell shares to the purchaser pursuant to an agreed schedule of payments. Default in payment left the vendors with two options: (1) the vendors could accelerate the entire amount due and owing (clause 1(c)) and (2) the vendors could opt to have the shares forfeited, retain one-half of the principal paid to date and remit the balance to the purchaser (clause 12). The purchaser defaulted. The vendors opted to accelerate the balance and applied for summary judgment. The purchaser claimed that forfeiture was automatic, therefore he was entitled to return the shares and receive one-half the payments made.

A Master of the Alberta Court of Queen's Bench granted summary judgment. The Master held that (1) clause 12 applied only at the vendor's option, therefore forfeiture was not automatic and (2) even if forfeiture was not expressly stated to be at the vendor's option such an option would be implied.

Contracts - Topic 2055

Terms - Implied terms - Forfeiture - Waiver of - A share purchase and sale agreement provided that if the purchaser defaulted on the instalment payments the vendors had two options - They could accelerate the entire unpaid purchase price or they could elect to have the shares forfeited, retain one-half the purchase price paid to date and remit the remainder to the purchaser - The purchaser claimed forfeiture was automatic upon default - A Master of the Alberta Court of Queen's Bench held that forfeiture was not automatic; the agreement clearly provided it was at the vendor's option - The Master opined that if the agreement neglected to state forfeiture was at the vendor's option, such an option would be implied, because the defaulting party should not be permitted to invoke for his own benefit a clause for the benefit of the innocent party.

Contracts - Topic 4655

Discharge and termination - By breach - Forfeiture - [See Contracts - Topic 2055 above].

Contracts - Topic 7410

Interpretation - Inconsistent clauses - General - A Master of the Alberta Court of Queen's Bench stated that if two clauses of a contract conflict the earlier clause must govern - See paragraph 32.

Courts - Topic 2121

Jurisdiction - Trial jurisdiction - General - A Master of the Alberta Court of Queen's Bench stated that a trial court's jurisdiction was limited to granting a judgment in accordance with the issues raised by the parties in their pleadings - See paragraph 15.

Practice - Topic 2106

Pleadings - Amendment of pleadings - Power of the court to amend - A Master of the Alberta Court of Queen's Bench stated that the court could not of its own initiative decide to amend a litigant's pleadings - See paragraph 16.

Cases Noticed:

Creditel of Canada v. Terrace Corporation (Construction) Ltd. (1984), 50 A.R. 311 (C.A.), refd to. [para. 15].

McDonald v. Fellows (1979), 17 A.R. 330; 105 D.L.R.(3d) 434 (C.A.), refd to. [para. 16].

Continental Insurance Company v. Law Society of Alberta (1985), 56 A.R. 98 (C.A.), refd to. [para. 32].

Hallbauer v. Shipowick, 38 Alta. L.R.(2d) 351 (Q.B. Master), refd to. [para. 37].

Davenport v. R. (1877), 3 App. Cas. 115, consd. [para. 38].

Beitel v. Sorokin and Monaghan, [1973] 5 W.W.R. 639; 1 N.R. 535 (C.A.), affd. 1 N.R. 534 (S.C.C.), refd to. [para. 42].

Prudential Insurance Co. of America v. Hollyburn Properties (Alberta), [1985] 1 W.W.R. 500 (B.C.C.A.), agreed with [para. 54].

Valley Vu Realty v. Victoria & Grey Trust, Re, 44 O.R.(2d) 526 (H.C.), affd. 47 O.R.(2d) 544 (C.A.), refd to. [para. 56].

Eastcal Developments v. Whissell Enterprises (1981), 25 A.R. 92 (C.A.), refd to. [para. 58].

Anderson v. Chaba (1978), 7 A.R. 469 (C.A.), refd to. [para. 64].

Counsel:

D.J. Wachowich (Chomicki Baril & Co.), for the plaintiffs;

I. Baker (Baker & Baker), for the defendants.

This application was heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 14, 1987.