Lalani v. Chow et al., 2011 BCCA 499

• Judge: Newbury, Saunders and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 26, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 499;(2011), 313 B.C.A.C. 259 (CA)

Lalani v. Chow (2011), 313 B.C.A.C. 259 (CA);

    533 W.A.C. 259

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. DE.015

Mumtaz Lalani and Mansurali Lalani (appellants/plaintiffs) v. Raymond Chow, Executor of the Will of Erland Walter Wenn Deceased, Trygve Shawn Wenn, Kerry Patrick Wenn, Erland William Wenn, Brandon Wenn and Sandi Whitehurst (respondents/defendants)

(CA038677; 2011 BCCA 499)

Indexed As: Lalani v. Chow et al.

British Columbia Court of Appeal

Newbury, Saunders and D. Smith, JJ.A.

December 7, 2011.

Summary:

The plaintiffs contracted with the executor of Wenn's estate to purchase a residential property. They agreed on a purchase price of $570,000 and a closing date of May 28, 2009. On May 11, 2009, three sons of Wenn commenced an action claiming that they had a binding contract with the executor to purchase the property from him for $450,000. The sons also claimed under the Wills Variation Act. The litigation caused the parties to miss the closing date. In November 2009, the plaintiffs sued for specific performance.

The British Columbia Supreme Court held that specific performance was not necessary to compensate the plaintiffs properly for the failure to execute the transfer. The court awarded damages of $43,532.76. The plaintiffs appealed.

The British Columbia Court of Appeal allowed the appeal and ordered the executor to pay the plaintiffs damages of $241,680.

Sale of Land - Topic 8568

Remedies of purchaser - Specific performance - Bars - The plaintiffs contracted with the executor of Wenn's estate to purchase a residential property - They agreed on a purchase price of $570,000 and a closing date of May 28, 2009 - On May 11, 2009, three sons of Wenn commenced an action claiming that they had a binding contract with the executor to purchase the property from him for $450,000 - The sons also claimed under the Wills Variation Act - The litigation caused the parties to miss the closing date - In November 2009, the plaintiffs sued for specific performance - The summary trial judge held that specific performance was not necessary to compensate the plaintiffs properly for the failure to execute the transfer - The property was not unique - The court awarded damages of $43,532.76 - The plaintiffs appealed - The British Columbia Court of Appeal allowed the appeal and ordered the executor to pay the plaintiffs damages of $241,680 - The court was not certain that the summary trial judge was correct in finding that the property was not unique - However, in light of the inequities to Wenn's wife as an equally innocent party, a decree of specific performance would not be appropriate even if the property was unique - Accordingly, damages were the appropriate remedy - The summary trial judge should have assessed the plaintiffs' damages with reference to the market value of the property at the date of trial - At the date of trial, the "agreed value" of the property was $810,000 - The difference between this amount and the original purchase price was $240,000, to which the plaintiffs were entitled as damages, together with their conveyance costs of $1,680 and the per diem mortgage interest they incurred to the date of trial.

Sale of Land - Topic 8755

Remedies of purchaser - Damages - In lieu of specific performance - [See Sale of Land - Topic 8568 ].

Sale of Land - Topic 8774

Remedies of purchaser - Damages - Measure of - [See Sale of Land - Topic 8568 ].

Cases Noticed:

Taberner v. Ernest & Twins Developments Inc., [2001] B.C.T.C. 367; 89 B.C.L.R.(3d) 104; 2001 BCSC 367, refd to. [para. 12].

Richter v. Simpson (1982), 37 B.C.L.R. 325 (S.C.), refd to. [para. 13].

Adderley v. Dixon (1824), 57 E.R. 239 (Ch.), refd to. [para. 17].

Heron Bay Investments Ltd. et al. v. Peel-Elder Developments Ltd. et al. (1976), 2 C.P.C. 338 (Ont. H.C.), refd to. [para. 17].

Chaulk v. Fairview Construction Ltd. (1977), 14 Nfld. & P.E.I.R. 13; 33 A.P.R. 13 (Nfld. C.A.), refd to. [para. 17].

306793 Ontario Ltd. in Trust v. Rimes (1979), 100 D.L.R.(3d) 350 (C.A.), refd to. [para. 17].

Semelhago v. Paramadevan, [1996] 2 S.C.R. 415; 197 N.R. 379; 91 O.A.C. 379, refd to. [para. 18].

Dodge (John E.) Holdings Ltd. v. 805062 Ontario Ltd., [2001] O.T.C. 803; 56 O.R.(3d) 341 (Sup. Ct.), affd. (2003), 168 O.A.C. 252; 223 D.L.R.(4th) 541 (C.A.), refd to. [para. 20].

Ali et al. v. 656527 B.C. Ltd. (2004), 201 B.C.A.C. 140; 328 W.A.C. 140; 2004 BCCA 350, refd to. [para. 20].

Silverberg v. 1054384 Ontario Ltd. et al. (2009), 266 O.A.C. 216; 2009 ONCA 698, refd to. [para. 20].

Raymond v. Raymond Estate (2011), 371 Sask.R. 260; 518 W.A.C. 260; 2011 SKCA 58, refd to. [para. 20].

Authors and Works Noticed:

Sharpe, R.J., Injunctions and Specific Performance, looseleaf, §§ 7.190 [para. 18]; 7.210 [para. 17]; 7.90 [para. 23].

Swan, John, Canadian Contract Law (2006), p. 295 [para. 16].

Counsel:

W.D. MacLeod, for the appellants;

P.W. Brown, for the respondent, R. Chow;

D.T. Hill, for the respondent, T. Wenn;

J.D. Buchan, for the respondent, S. Whitehurst.

This appeal was heard at Vancouver, British Columbia, on October 26, 2011, by Newbury, Saunders and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Newbury, J.A., on December 7, 2011.