King v. King et al., (2015) 372 Nfld. & P.E.I.R. 102 (NLTD(G))

• Judge: Orsborn, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 02, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 372 Nfld. & P.E.I.R. 102 (NLTD(G))

King v. King (2015), 372 Nfld. & P.E.I.R. 102 (NLTD(G));

    1158 A.P.R. 102

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. OC.010

Derrick King (first plaintiff/first defendant by counterclaim) v. Gabriele King (second plaintiff/second defendant by counterclaim), Sherman King (first defendant/first plaintiff by counterclaim) and Jayne Lunney aka Jayne King (second defendant/second plaintiff by counterclaim)

(201401G5216; 2015 NLTD(G) 130)

Indexed As: King v. King et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Orsborn, J.

October 2, 2015.

Summary:

Derrick and Gabriele (the plaintiffs) moved into a house owned by Derrick's father (Sherman). Differences arose between Sherman and the plaintiffs. Sherman demanded that the plaintiffs vacate the house. The plaintiffs commenced an action against Sherman and his spouse (the defendants), asserting that Sherman had gifted the house to Derrick. They sought an order that Sherman transfer the house into their names or, alternatively, an order requiring Sherman to pay them the value of the house and the value of improvements made. The defendants counterclaimed for rent and repair costs.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the claim and the counterclaim. The plaintiffs were ordered to deliver vacant possession of the property to Sherman.

Damages - Topic 4381

Torts affecting land and buildings - Occupation and use - General - Derrick and Gabriele (the plaintiffs) were living in Ontario when they were contacted by Derrick's father (Sherman) and Sherman's spouse (Jayne), who lived in Newfoundland - Sherman said that he would give the plaintiffs a house to live in if they returned to Newfoundland - The plaintiffs returned to Newfoundland and took possession of the house - Subsequently, differences arose between the parties - Sherman demanded that the plaintiffs vacate the house - The plaintiffs sued Sherman and Jayne, asserting that Sherman had gifted the house to Derrick - They sought an order that Sherman transfer the house into their names or pay them the value of the house and the value of improvements made - Sherman and Jayne counterclaimed for rent and repair costs - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the claim and the counterclaim - Respecting the counterclaim, the court stated that "... there was no enforceable transfer of the property. It follows that Sherman was able to demand possession of the property, which he did through his lawyer in June 2014. But in all of the circumstances, and bearing in mind that the legal positions of the parties are only now being settled through this litigation, I consider it would be unreasonable in the extreme that Derrick and Gabriele should be required to pay rent, at least up until the relinquishment of possession according to the terms of this decision." - There was no evidence or legal reason advanced respecting reimbursement for repairs - See paragraphs 57 to 61.

Damages - Topic 4461

Torts affecting land and buildings - Evidence and proof - General - [See Damages - Topic 4381 ].

Equity - Topic 1003

Equitable relief - General - When refused - [See Gifts - Topic 854 ].

Gifts - Topic 502

Gifts inter vivos - General principles - Intention required - [See Gifts - Topic 953 ].

Gifts - Topic 854

Gifts inter vivos - Validity of transfer - Particular types of property - Real property - Derrick and Gabriele (the plaintiffs) were living in Ontario when they were contacted by Derrick's father (Sherman) and Sherman's spouse (Jayne), who lived in Newfoundland - Sherman said that he would give the plaintiffs a house to live in if they returned to Newfoundland - The plaintiffs returned to Newfoundland and took possession of the house - Subsequently, differences arose between the parties - Sherman demanded that the plaintiffs vacate the house - The plaintiffs sued Sherman and Jayne, asserting that Sherman had gifted the house to Derrick - They sought an order that Sherman transfer the house into their names or pay them the value of the house and the value of improvements made - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the claim due to a lack of proof that Sherman intended to gift the house - Even if Sherman did intend to gift the house, the gift would have been unenforceable due to the absence of a transfer in writing - The improvements done to the house were not so extensive that it would be inequitable for Sherman not to complete the intended gift - The expenditures were mostly for routine maintenance items - The evidence did not suggest that they in fact improved the property - See paragraphs 44 to 55.

Gifts - Topic 953

Gifts inter vivos - Evidence and proof - Donor's intention - In May 2012, Derrick and Gabriele (the plaintiffs) were living in Ontario when they were contacted by Derrick's father (Sherman) and Sherman's spouse (Jayne), who lived in Newfoundland - Sherman said that he would give the plaintiffs a house to live in if they returned to Newfoundland - The plaintiffs returned to Newfoundland and took possession of the house in June 2012 - Subsequently, differences arose between the parties - Sherman demanded that the plaintiffs vacate the house - The plaintiffs sued Sherman and Jayne, asserting that Sherman had gifted the house to Derrick - They sought an order that Sherman transfer the house into their names or pay them the value of the house and the value of improvements made - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the claim - The relevant time for assessing whether Sherman intended to gift the house was June 2012 when the plaintiffs took possession - Although the word "gift" was used on several occasions, the evidence as a whole indicated that Sherman's intention was to allow the plaintiffs to live in the house for free and for as long as they wanted, but with he and Jayne being free to come and go from the property as they wanted, to use the garage and shed, and to get drinking water from the well - The arrangement was an advance on Derrick's inheritance and also subject to Gabriele not causing any trouble - See paragraphs 33 to 43.

Sale of Land - Topic 1325

The contract - Necessity for writing - General - Statute of Frauds - Circumstances within Statute - [See Gifts - Topic 854 ].

Cases Noticed:

Hollett v. Hollett (1993), 106 Nfld. & P.E.I.R. 271; 334 A.P.R. 271; 31 R.P.R.(2d) 251 (Nfld. T.D.), refd to. [para. 32].

McCormick v. McCormick, [1985] 6 W.W.R. 466; 42 Sask.R. 58 (Q.B.), refd to. [para. 33].

Rascal Trucking Ltd. v. Nishi (2013), 445 N.R. 293; 336 B.C.A.C. 50; 574 W.A.C. 50; 2013 SCC 33, refd to. [para. 34].

Bath v. Bath (2002), 226 Nfld. & P.E.I.R. 78; 673 A.P.R. 78; 2002 NFCA 21, refd to. [para. 38].

Hiscock v. Swackhamer (1995), 129 Nfld. & P.E.I.R. 16; 402 A.P.R. 16 (Nfld. T.D.), refd to. [para. 44].

Beresford et al. v. Beresford et al. (2000), 193 Nfld. & P.E.I.R. 28; 582 A.P.R. 28; 32 R.P.R.(3d) 116 (Nfld. T.D.), refd to. [para. 47].

Brogden v. Brogden (1920), 2 W.W.R. 803; 53 D.L.R. 362 (Alta. C.A.), refd to. [para. 48].

Counsel:

Derrick King, on his own behalf;

Gabriele King, on her own behalf;

Katrina R.M. Hanlon, for the defendants.

This claim and counterclaim were heard at St. John's, N.L., on September 21-23, 2015, before Orsborn, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on October 2, 2015.