Litt et al. v. Gill

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Saunders, Garson and Fitch, JJ.A.
• Citation: 2016 BCCA 288,(2016), 390 B.C.A.C. 243 (CA)
• Date: 13 January 2016
• Subject Matter: SALE OF LAND,CONTRACTS,BUILDING CONTRACTS,PRACTICE

Litt v. Gill (2016), 390 B.C.A.C. 243 (CA);

    673 W.A.C. 243

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JL.011

Gaganjot Singh Litt, Sharondeep Kaur Dhaliwal, Jagjit Singh Litt (appellants/plaintiffs) v. Surjit Kaur Gill also known as Seet Gill (defendant/respondent)

(CA42744; 2016 BCCA 288)

Indexed As: Litt et al. v. Gill

British Columbia Court of Appeal

Saunders, Garson and Fitch, JJ.A.

July 5, 2016.

Summary:

Gill entered into an agreement with the plaintiffs (Dhaliwal, Gaganjot Litt and Jagjit Litt) under which Gill was to subdivide her property at her own expense, then sell the west side of the property to Gaganjot and Dhaliwal for "$500,000 inclusive of taxes". The agreement provided that Jagjit would build Gill a house for a fee of $20,000 plus $100/square foot. The building costs were to be deducted from the $500,000 payable by Gaganjot and Dhaliwal. Gill's existing house, which was located on the westside of the property, was demolished in September 2011. However, the subdivision took longer and proved more costly than Gill had anticipated. In March 2012, Dhaliwal advanced Gill $71,473.45 to assist with the subdivision expenses. A document was drawn up confirming that the payment was a deposit to be deducted from the total purchase price. On May 16, 2012, the notary acting for the plaintiffs sent to Gill's lawyer a transfer of land and vendor's statement of adjustments and other closing documents indicating a purchase price of $446,428.57. Gill insisted the purchase price was $500,000 "in [her] pocket". The plaintiffs asserted that because the parties had agreed that no HST was payable, 15% had to be "netted out" to give the real purchase price. The parties were unable to resolve the disagreement and Gill advised the plaintiffs that they had repudiated the agreement and she had accepted the repudiation. The plaintiffs sued Gill, seeking specific performance of the agreement. Gill counterclaimed for damages arising out of the allegedly premature demolition of her home, which she said resulted in loss of rental income, and the extra expense of renting a home on top of her mortgage. She sought compensation for her rental expenses and loss of use and enjoyment of her home, but not lost rental income.

The British Columbia Supreme Court, in a decision reported at [2015] B.C.T.C. Uned. 491, held that the purchase price was capped at $500,000. However, the agreement was unenforceable as an essential term as to the timing of the portion of the purchase price due from Gaganjot through construction of a home could not be determined from the agreement. Alternatively, the plaintiffs' conduct repudiated the agreement and Gill accepted the repudiation. The court dismissed the counterclaim and awarded Gill costs. Meanwhile, the property was sold. The plaintiffs appealed. As specific performance was no longer available, the plaintiffs sought damages if the appeal succeeded.

The British Columbia Court of Appeal held that the trial judge did not err in concluding that the price was unambiguous or in concluding, in the alternative, that the agreement had been repudiated and the repudiation accepted. Since there were no errors in those findings, the trial judgment had to be upheld. The court allowed the appeal to the extent of awarding the plaintiffs their costs of the counterclaim at trial.

Building Contracts - Topic 923

The contract - Repudiation - What constitutes - See paragraphs 40 to 50.

Building Contracts - Topic 927

The contract - Repudiation - By builder - See paragraphs 40 to 50.

Contracts - Topic 3664

Performance or breach - Repudiation - What constitutes repudiation - See paragraphs 40 to 50.

Contracts - Topic 3666

Performance or breach - Repudiation - What constitutes acceptance of repudiation - See paragraphs 40 to 50.

Contracts - Topic 7426

Interpretation - Ambiguity - What constitutes ambiguity - See paragraphs 32 to 39.

Practice - Topic 7031

Costs - Party and party costs - Entitlement to - Counterclaims - See paragraphs 51 to 57.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge - Contractual interpretation - See paragraphs 28 to 31.

Sale of Land - Topic 3442

Contract - Discharge - Repudiation - By buyer - What constitutes repudiation - See paragraphs 40 to 50.

Counsel:

D.J. Taylor, for the appellant;

D. Cayley, for the respondent.

This appeal was heard at Vancouver, British Columbia, on January 13, 2016, by Saunders, Garson and Fitch, JJ.A., of the British Columbia Court of Appeal. Garson, J.A., delivered the following reasons for judgment for the court on July 5, 2016.